<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 18, 1998
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
Anadarko Petroleum Corporation
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 76-0146568
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
17001 NORTHCHASE DRIVE SUZANNE SUTER
HOUSTON, TEXAS 77060-2141 17001 NORTHCHASE DRIVE
(281) 875-1101 HOUSTON, TEXAS 77060-2141
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (281) 875-1101
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
EXECUTIVE OFFICES) NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
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Copies to:
Deanna L. Kirkpatrick
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Edward S. Davis
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
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Approximate date of commencement of proposed sale to the Public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.................................
Preferred Stock, $1.00 par value................
Depositary Shares representing Preferred
Stock......................................... $400,000,000 100% $400,000,000 $118,000
Common Stock, $0.10 par value, and Rights
attached thereto..............................
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</TABLE>
(1) Such amount in U.S. dollars or the equivalent thereof in foreign currencies
as shall result in an aggregate initial public offering price for all
securities of $400,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT ALSO RELATES TO $100 MILLION OF DEBT AND
EQUITY SECURITIES REGISTERED AND REMAINING UNISSUED UNDER REGISTRATION STATEMENT
NO. 333-30927 PREVIOUSLY FILED BY REGISTRANT, IN RESPECT OF WHICH $30,303 HAS
BEEN PAID TO THE COMMISSION AS FILING FEE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, MARCH 18, 1998
[ANADARKO LOGO]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------------
Anadarko Petroleum Corporation (the "Company") from time to time may offer
its senior debt securities (the "Senior Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities") consisting of debentures, notes
and/or other unsecured evidences of indebtedness (the Senior Debt Securities and
the Subordinated Debt Securities, collectively referred to as the "Debt
Securities"). The Company may also from time to time offer shares of its
Preferred Stock, $1.00 par value (the "Preferred Stock") or Common Stock, $0.10
par value (the "Common Stock"). The aggregate offering price of the Debt
Securities, the Preferred Stock and the Common Stock offered hereby (the
"Securities") will not exceed $500,000,000. The Securities may be offered as
separate series in amounts, at prices and on terms to be determined at the time
of sale and to be set forth in supplements to this Prospectus (each a
"Prospectus Supplement").
The Company may sell Securities to or through underwriters or dealers
designated from time to time, and also may sell Securities directly to other
purchasers or through agents designated from time to time. See "Plan of
Distribution."
As used herein, Debt Securities shall include securities denominated in
U.S. dollars or, at the option of the Company if so specified in the applicable
Prospectus Supplement, in any other currency, including composite currencies
such as the European Currency Unit. Debt Securities of a series may be issuable
in registered definitive form ("Registered Notes") or in the form of one or more
global securities (each a "Global Note"). The Subordinated Debt Securities will
be subordinated in right of payment to all present and future Senior
Indebtedness (as defined) of the Company. See "Description of Debt Securities --
Subordination."
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, currencies, denominations, maturity,
rate (which may be fixed or variable) and time of payment of interest, if any,
terms for redemption at the option of the Company or the holder, terms for
sinking or purchase fund payments, the initial public offering price, the
conversion price (in the case of Subordinated Debt Securities that may be
convertible into shares of Common Stock of the Company), and the other terms in
connection with the offering and sale of the Debt Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement.
The applicable Prospectus Supplement will set forth the specific
designation, rights, preferences, privileges and restrictions, including
dividend rate (or manner of calculation thereof), time of payment of dividend,
liquidation value, terms for conversion (if any) into Common Stock, listing (if
any) on a securities exchange, terms for mandatory or optional redemption and
any other specific terms of the series of Preferred Stock in respect of which
this Prospectus is being delivered. If so specified in the applicable Prospectus
Supplement, the Preferred Stock may be represented by Depositary Shares
entitling the holder proportionally to all rights and preferences of the
Preferred Stock.
The names of any underwriters or agents, the principal amounts, if any, to
be purchased by underwriters, the compensation of such underwriters or agents
and any listing or proposed listing on a securities exchange will be set forth
in the applicable Prospectus Supplement.
Shares of the Common Stock are listed on the New York Stock Exchange.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is
<PAGE> 3
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED
HEREIN OR THEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER THAN
THE SECURITIES OR AN OFFER TO SELL, OR A SOLICITATION OF ANY OFFER TO BUY,
SECURITIES IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE
DATES.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C., a registration statement on Form S-3 (together
with all amendments and exhibits, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended, with respect to the Securities.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Securities and the Company, reference is made to the Registration
Statement.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Commission. Such reports
and other information can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World
Trade Center, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission
maintains a Web site at http://www.sec.gov that contains reports, proxy and
other information regarding the Registrant. In addition, copies of such reports
and other information concerning the Company may also be inspected and copied at
the library of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act (File No. 1-8968) are incorporated herein by reference: (a)
Form 8-A, filed on September 4, 1986, for registration of Common Stock, (b) Form
8-A, filed on October 5, 1988, for registration of Series A Preferred Stock
Purchase Rights, (c) Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (the "Form 10-K"), which contains the consolidated financial
statements of the Company and its subsidiaries by incorporation by reference to
the 1997 Annual Report and, (d) Form 10-K/A, dated June 25, 1997, which contains
the Annual Report of the Anadarko Employee Savings Plan on Form 11-K. All other
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
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The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request, a copy of any or all of the foregoing documents incorporated herein by
reference (other than exhibits unless such exhibits are specifically
incorporated by reference in such documents). Requests for such documents should
be directed to Suzanne Suter, Corporate Secretary, Anadarko Petroleum
Corporation, 17001 Northchase Drive, Houston, Texas 77060-2141. The Company's
telephone number is (281) 875-1101.
3
<PAGE> 5
THE COMPANY
The Company is one of the world's largest independent oil and gas
exploration and production companies with 708 million energy equivalent barrels
of proved reserves as of December 31, 1997.
The Company's reserve mix has shifted dramatically in recent years,
primarily due to major crude oil discoveries both in the U.S. and Algeria, which
have resulted in a larger and more balanced portfolio of energy reserves. As of
year-end 1997, crude oil, condensate and natural gas liquids reserves accounted
for 59 percent of the Company's total reserves.
About 74 percent of the Company's proved reserves are located in the U.S.,
primarily in the mid-continent (Kansas, Oklahoma and Texas) area, offshore in
the Gulf of Mexico and in Alaska. At year-end 1997, all of the Company's
production was in the U.S. The Company also owns and operates gas gathering
assets in its U.S. core producing areas.
Internationally, the Company is exploring for and developing crude oil
reserves in Algeria's Sahara Desert. As of December 31, 1997, the Company has
recorded 184.1 million barrels of proved crude oil and condensate reserves in
Algeria, which accounts for about 26 percent of Anadarko's total proved
reserves. First oil production from the Hassi Berkine South Field is expected in
May 1998. Development of other commercial fields in Algeria is also underway.
The Company is also participating in other exploration projects in Eritrea,
Jordan, Peru, the North Atlantic Ocean and Tunisia.
The principal subsidiaries of the Company include: Anadarko Algeria
Corporation, Anadarko Energy Services Company; and, Anadarko Gathering Company.
The Company's executive offices are located at 17001 Northchase Drive, Houston,
Texas 77060-2141, where the telephone number is (281) 875-1101.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement relating to an
offering of Securities, the net proceeds from the sale of the Securities will be
used for general corporate purposes, including the refinancing of outstanding
indebtedness and the financing of capital expenditures. Any specific allocation
of the net proceeds of an offering of Securities to a specific purpose will be
determined at the time of such offering and will be described in the related
Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods shown.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
- -----------------------------------------------------------------
1993 1994 1995 1996 1997
- --------------------- -------- -------- -------- --------
<S> <C> <C> <C> <C>
2.68 2.11 1.24 3.34 3.04
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings include income before income taxes
and fixed charges. Fixed charges include interest and amortization of debt
expenses, and the estimated interest component of rentals.
No shares of Preferred Stock were outstanding during any of the periods
presented. Accordingly, the ratio of earnings to fixed charges and preferred
stock dividends for each of the periods presented is the same as the ratio of
earnings to fixed charges.
4
<PAGE> 6
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities will be unsecured obligations of the Company. The
Senior Debt Securities are to be issued under the Indenture (the "Senior
Indenture") by and between the Company and Harris Trust and Savings Bank (the
"Senior Trustee") and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company. The Subordinated Debt Securities are
to be issued under the Indenture (the "Subordinated Indenture") to be entered
into by and between the Company and First Chicago NBD (the "Subordinated
Trustee").
The Senior Indenture and the Subordinated Indenture are sometimes
hereinafter collectively referred to as the "Indentures." The Senior Trustee and
the Subordinated Trustee are sometimes hereinafter collectively referred to as
the "Trustees." References set forth in the following description of Debt
Securities are to sections of both Indentures unless otherwise indicated.
The terms of the Debt Securities include those stated in the applicable
Indentures and those made part of such Indentures by reference to the Trust
Indenture Act of 1939, as amended. The Debt Securities are subject to all such
terms, and prospective purchasers of Debt Securities are referred to the
applicable Indentures and the Trust Indenture Act for a statement of those
terms. The statements under this caption relating to the Debt Securities and the
Indentures are summaries and do not purport to be complete. Such summaries use
certain terms which are defined in the Indentures and are qualified in their
entirety by express reference to the Indentures which have been filed as
exhibits to the Registration Statement of which this Prospectus is a part.
GENERAL PROVISIONS APPLICABLE TO BOTH INDENTURES
The Indentures do not limit the aggregate principal amount of debentures,
notes or other evidences of indebtedness which may be issued thereunder and
provide that Debt Securities may be issued thereunder from time to time in one
or more series.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby (the "Offered Debt Securities") for
the following terms of the Offered Debt Securities: (1) the title of the Offered
Debt Securities; (2) any limit on the aggregate principal amount of the Offered
Debt Securities; (3) the date or dates on which the Offered Debt Securities will
mature; (4) the rate or rates (which may be fixed or variable) per annum at
which the Offered Debt Securities will bear interest, if any, and the date from
which such interest will accrue; (5) the dates on which any such interest will
be payable and the Regular Record Dates for such Interest Payment Dates; (6) any
mandatory or optional sinking fund or purchase fund or analogous provisions; (7)
if applicable, the date after which and the price or prices at which the Offered
Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or of the Holder thereof
and the other detailed terms and provisions of such optional or mandatory
redemption; (8) if applicable, any terms by which the Subordinated Securities
may be convertible into Common Stock; (9) any restrictive covenants included for
the benefit of Holders of the Offered Debt Securities; (10) any additional
Events of Default provided with respect to the Offered Debt Securities; (11) the
currency of payment of the principal of (and premium, if any) and interest on
the Offered Debt Securities; (12) any index used to determine the amount of
payments of the principal of (and premium, if any) and interest on the Offered
Debt Securities; (13) whether the Offered Debt Securities are to be issued in
whole or part in the form of a Global Note or Notes and, if so, the identity of
the Depositary for such Global Note or Notes; (14) the terms and conditions, if
any, upon which a Global Note or Notes may be exchanged in whole or in part for
other definitive Offered Debt Securities; and (15) any other terms of the
Offered Debt Securities. (Section 301)
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Unless otherwise indicated in the Prospectus Supplement relating thereto,
the principal of (and premium, if any) and interest on the Offered Debt
Securities will be payable, and the Offered Debt Securities will be exchangeable
and transfers thereof will be registrable, at the applicable Corporate Trust
Offices of the Trustees, provided that at the option of the Company, payment of
any interest may be made by check mailed to the address of the Person entitled
thereto as it appears in the Security Register. (Sections 202, 305 and 1002)
The Prospectus Supplement relating to a series of Offered Debt Securities
will specify the currency or currencies in which the principal and interest are
to be paid, the denomination of the Offered Debt Securities and whether Global
Notes are to be issued. (Section 302) Special provisions relating to a series of
Offered Debt Securities denominated in or payable by reference to a currency
other than U.S. dollars, and any applicable currency exchange and tax
information, will be described in the Prospectus Supplement relating to such
series. No service charge will be made for any registration of transfer or
exchange of the Offered Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Section 305)
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
stated principal amount. Special federal income tax, accounting and other
considerations applicable to any such Original Issue Discount Securities will be
described in the Prospectus Supplement relating thereto.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Offered Debt Securities, the covenants applicable to the
Debt Securities would not necessarily afford holders protection in the event of
a highly leveraged or other transaction involving the Company or in the event of
a material adverse change in the Company's financial condition or results of
operations.
Global Notes
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such series. The specific terms of the depositary arrangement with respect to
any Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all depositary arrangements.
Upon the issuance of a Global Note, the Depositary for such Global Note
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Note to the
accounts of institutions that have accounts with such Depositary (the
"participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities, or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in a Global Note will be limited to participants or persons that hold
interests through participants. Ownership of beneficial interests in such Global
Note will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the Depositary for such Global Note (with respect
to interests of participants) or by participants or persons that hold through
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may limit the ability
to transfer beneficial interests in a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the owner
of such Global Note, such Depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the Debt Securities represented by
such Global Note for all purposes under the Senior Indenture. Except as set
forth below, owners of beneficial interests in a Global Note will not be
entitled to have Debt Securities of the series represented by such Global Notes
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form and will not
6
<PAGE> 8
be considered the owners or holders thereof under the Senior Indenture.
Accordingly, each person owning a beneficial interest in a Global Note must rely
on the procedures of the Depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a Holder under the Senior Indenture. The Senior
Indenture provides that the Depositary may grant proxies and otherwise authorize
participants to take any action which a Holder is entitled to take under the
Senior Indenture. The Company understands that under existing industry practice,
in the event that the Company requests any action of Holders or a beneficial
owner desires to take any action a Holder is entitled to take, the Depositary
would authorize the participants to take such action and that the participants
would take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
Payment of principal, premium, if any, and interest on Debt Securities
registered in the name of or held by a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner or
the holder of the Global Note representing such Debt Securities. None of the
Company, the Trustee, any Paying Agent or the Security Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Note for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium or interest in respect of a
Global Note, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Note as shown on the records of such Depositary. The
Company also expects that payments by participants to owners of beneficial
interests in such Global Note held through such participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name", and will be the responsibility of such participants.
A Global Note may not be transferred except as a whole by the Depositary
for such Global Note to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary. A Global
Note is exchangeable for Debt Securities registered in the names of persons
other than the Depositary with respect to such Global Note or its nominee only
if (x) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note or if at any time such Depositary
ceases to be a clearing agency registered under the Exchange Act, (y) the
Company executes and delivers to the Trustee a Company Order that all such
Global Notes shall be exchangeable or (z) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the
Debt Securities. Any Global Note that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Debt Securities registered in such names as
the Depositary with respect to such Global Note shall direct. (Section 305)
Events of Default
The following are Events of Default under each Indenture with respect to
Debt Securities of any series issued thereunder: (a) failure to pay any interest
on any Debt Security of that series when due, continued for 60 days; (b) failure
to pay the principal of (or premium, if any, on) any Debt Security of that
series when due; (c) failure to make sinking fund payments in respect of any
Debt Security of that series when due, continued for 60 days; (d) failure to
perform any other covenant of the Company in the applicable Indenture (other
than a covenant included in such Indenture solely for the benefit of a series of
Debt Securities other than that series), continued for 90 days after written
notice as provided in such Indenture; (e) default by the Company in payment of
any principal of any Funded Debt outstanding in an aggregate principal amount in
excess of $10,000,000 causing such Funded Debt to become, or to be declared, due
prior to its stated maturity and such acceleration is not cured within 30 days
after notice; (f) certain events in bankruptcy, insolvency or reorganization;
and (g) any other Event of Default provided with respect to Debt Securities of
that series. (Section 501) If an Event of
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<PAGE> 9
Default provided with respect to Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the applicable Trustee or the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all Debt
Securities of that series to be due and payable immediately. However, any time
after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before judgment or decree based on such acceleration
has been obtained, the Holders of a majority in principal amount of Outstanding
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. (Section 502) For information as to waiver of defaults,
see "Modification and Waiver".
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provision relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
Each of the Indentures provides that, subject to the duties of the
applicable Trustee to act with the required standard of care if an Event of
Default shall occur and be continuing, such Trustee will be under no obligation
to exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to such
Trustee reasonable security or indemnity. (Section 603) Subject to such
provisions for security or indemnification of the applicable Trustee, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to such Trustee or exercising
any trust or power conferred on such Trustee with respect to the Debt Securities
of that series. (Section 512)
The Company will be required to furnish to each Trustee annually a
statement as to any defaults in the performance of its obligations under the
applicable Indenture. (Section 1006)
Consolidation, Merger and Sale of Assets
The Company, without the consent of any Holders of Outstanding Debt
Securities, may consolidate with or merge into any other Person, or convey,
transfer or lease its assets substantially as an entirety to any Person,
provided that the Person formed by such consolidation or into which the Company
is merged, and the Person which acquires by conveyance or transfer or leases the
assets of the Company substantially as an entirety, is organized under the laws
of any United States jurisdiction and assumes the Company's obligations on the
Debt Securities and under the Indentures, that after giving effect to the
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing, and that certain other conditions are met. (Article Eight)
Modification and Waiver
Modification and amendments of each Indenture may be made by the Company
and the applicable Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Debt Securities of each series affected
thereby; provided, however, that no such modification or amendment may, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Debt Security; (b) reduce the principal amount
of (or premium, if any) or interest on, any Debt Security; (c) reduce the amount
of principal of an Original Issue Discount Security payable upon acceleration of
the Maturity thereof; (d) change the place or currency of payment of principal
of (or premium, if any) or interest on, any Debt Security; (e) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Debt Security; or (f) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of the Holders of which is
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required for modification or amendment of the applicable Indenture or for waiver
of compliance with certain provisions of the applicable Indenture or for waiver
of certain defaults. (Section 902)
Without the consent of any Holder of Outstanding Debt Securities, the
Company may amend or supplement each of the Indentures and each series of Debt
Securities to cure any ambiguity or inconsistency or to provide for Debt
Securities in bearer form in addition to or in place of registered Debt
Securities or to make any other provisions that do not adversely affect the
rights of any Holder of Outstanding Debt Securities. (Section 901)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive any past default under the Indenture with respect to that
series, except a default in the payment of the principal of (or premium, if any)
or interest on any Debt Security of that series or in respect of a provision
which under the Indenture cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security of that series affected. (Section
513)
Defeasance
The Indentures provide that the Company may elect to defease and be
discharged from any and all obligations with respect to any Debt Securities
(except for the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities
and to hold moneys for payment in trust) ("defeasance"), upon the deposit with
the applicable Trustee (or other qualifying trustee), in trust for such purpose,
of money, and/or U.S. Government Obligations (as defined), which through the
payment of principal and interest in accordance with their terms will provide
money, in an amount sufficient to pay the principal of (and premium, if any) and
interest on such Debt Securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor. (Article Thirteen)
In the event of a defeasance as provided above with respect to any Debt
Securities, holders of such Debt Securities would be able to look only to the
trust fund established for payments of principal of (and premium, if any) and
interest on such Debt Securities until maturity. Further, under federal income
tax laws, such a defeasance could be a taxable exchange of such Debt Securities
for interests in the trust. As a consequence, a Holder may recognize gain or
loss equal to the difference between the Holder's cost or other tax basis for
such Debt Securities and the value of the holder's interest in the trust, and
thereafter may be required to include in income a share of the income, gain and
loss of the trust.
SENIOR INDENTURE PROVISIONS
Limitation on Liens
The Senior Indenture provides that if the Company or any Restricted
Subsidiary shall incur, assume or guarantee any Debt secured by a Mortgage on
any Principal Property, on any shares of stock of any Restricted Subsidiary or
on any Restricted Subsidiary Indebtedness, the Company will secure, or cause
such Restricted Subsidiary to secure, the Senior Securities equally and ratably
with (or prior to) such secured Debt, unless after giving effect thereto the
aggregate amount of all such Debt so secured would not exceed 10% of the
Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries.
This restriction will not apply to, and there shall be excluded in computing
secured Debt for the purpose of such restriction, Debt secured by (a) Mortgages
existing at the date of the Senior Indenture, (b) Mortgages on property, on
shares of stock or Restricted Subsidiary Indebtedness of any corporation
existing at the time such corporation becomes a Restricted Subsidiary, (c)
Mortgages in favor of the Company or any Restricted Subsidiary, (d) Mortgages on
property, shares of stock, or Restricted Subsidiary Indebtedness existing at the
time of acquisition thereof (including acquisition through merger, consolidation
or other reorganization) and certain purchase money Mortgages and construction
cost Mortgages, (e) certain Mortgages in favor of governmental
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bodies (including Mortgages in connection with tax-exempt indebtedness), (f)
certain Mortgages to secure partial, progress, advance or other payments or any
Debt incurred to finance the purchase price or cost of construction, development
or repair, alteration or improvement of property, (g) Mortgages on oil, gas,
coal or other minerals in place or on geothermal resources in place and related
interests incurred to finance production, development or acquisition costs, (h)
Mortgages on certain equipment, (i) Mortgages arising in connection with certain
government contracts and (j) certain extensions, renewals or replacements of any
Debt secured by any Mortgage referred to in the foregoing clauses (a) through
(i), inclusive. (Section 1005) The Senior Indenture will not restrict the
incurrence of unsecured Debt by the Company or its Subsidiaries.
Certain Summary Definitions
"Consolidated Net Tangible Assets" means the aggregate amount of assets of
the Company and its Restricted Subsidiaries after deducting (a) all current
liabilities (excluding any Funded Debt) and (b) all goodwill, trade names and
trademarks, patents, unamortized debt discount and expense and other like
intangibles.
"Principal Property" means any plant or real property interest located in
the United States or offshore the United States owned by the Company or any
Restricted Subsidiary, the gross book value of which exceeds 2% of Consolidated
Net Tangible Assets, unless the Board of Directors determines such property is
not of material importance to the total business of the Company. As of December
31, 1997, approximately 13% of Consolidated Net Tangible Assets would be within
the definition of Principal Properties.
"Restricted Subsidiary" means a subsidiary of the Company except a
subsidiary (a) which neither transacts any substantial portion of its business
nor regularly maintains any substantial portion of its fixed assets within the
United States or offshore the United States or (b) which is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both.
Regarding the Senior Trustee
The Senior Trustee is an affiliate of the Bank of Montreal ("BOM"). The
Company has a $225,000,000 Revolving Credit Agreement and a $125,000,000 364-Day
Credit Agreement with a group of commercial banks, including BOM. Pursuant to
terms of these agreements, BOM has a commitment to loan the Company an aggregate
of $40,000,000.
SUBORDINATED INDENTURE PROVISIONS
Conversion Rights
The Prospectus Supplement will provide whether the Offered Debt Securities
will consist of convertible Subordinated Securities and, if so, the initial
conversion price per share at which such convertible Subordinated Securities
will be convertible into Common Stock. Subject to prior redemption of
convertible Subordinated Securities, the holders of such Securities will be
entitled at any time on or before the close of business on the maturity date
thereof to convert such Securities (or, in the case of convertible Subordinated
Securities of denominations in excess of $1,000 any portion of which is $1,000
or an integral multiple of $1,000) into shares of Common Stock at the initial
conversion price set forth in the Prospectus Supplement. No adjustment will be
made on conversion of any convertible Subordinated Securities for interest
accrued thereon or, except as set forth below, for dividends on any securities
issued upon such conversion. Certificates for shares of Common Stock issued, on
or prior to the Expiration Date, hereinafter referred to, or Distribution Date,
as defined below under "Rights Agreement", upon conversion of convertible
Subordinated Securities shall also evidence one right (a "Right"), in respect of
each such share, pursuant to the Rights Agreement, dated as of October 4, 1988
(the "Rights Agreement") between the Company and Manufacturers Hanover Trust
Company, as then in effect. See "Description of Capital Stock, Rights Agreement
and Restated Certificate of Incorporation -- Rights Agreement" for a description
of the Rights and the Rights
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Agreement. "Expiration Date" means the earlier of (i) October 20, 1998 or (ii)
the redemption of the Rights.
In order to exercise the right of conversion, the Holder of any such
convertible Subordinated Securities must surrender his convertible Subordinated
Securities to the Company at any office or agency of the Company maintained for
such purpose. The convertible Subordinated Securities to be surrendered must be
accompanied by written notice to the Company that the Holder elects to convert
such Securities.
If any convertible Subordinated Security, whether or not called for
redemption, is converted between a record date for the payment of interest and
the next succeeding interest payment date, such Security must be accompanied by
funds payable to the Company equal to the interest payable to the registered
holder on such interest payment date on the principal amount so converted. In
the case of any convertible Subordinated Security or portion thereof called for
redemption, conversion rights expire at the close of business on the Redemption
Date, even if such redemption occurs at a time when conversion of the
Subordinated Security portion thereof is in the best interests of the Holder.
(Sections 1501, 1502 and 1503)
Except where Subordinated Securities surrendered for conversion must be
accompanied by such payment, no interest on converted Subordinated Securities
will be payable by the Company on any interest payment date subsequent to the
date of conversion.
No fractional shares of Common Stock will be issued upon conversion but, in
lieu thereof, an adjustment in cash will be made based on the market price at
the close of business on the date of conversion. (Section 1503)
The Conversion Price will be subject to adjustment in the event of: (i) the
payment of certain stock dividends on the Common Stock; (ii) the issuance of
certain rights or warrants to all holders of the Common Stock entitling them to
subscribe for or purchase Common Stock at a price less than the market price;
(iii) the subdivision of Common Stock into a greater number of shares of Common
Stock; (iv) the distribution by the Company to all holders of the Common Stock
of evidences of indebtedness or assets of the Company (excluding rights or
warrants and any dividends or distributions mentioned above); and (v) the
reclassification of Common Stock into other securities. (Section 1504) In case
of any consolidation or merger of the Company with or into any other corporation
(other than a consolidation or merger which does not result in any
reclassification, change or conversion of Common Stock), or in case of any sale
or transfer of substantially all the assets of the Company, any Holder of any
Subordinated Securities will be entitled, after the occurrence of any such
event, to receive on conversion the kind and amount of shares of capital stock
and other securities, cash or other property receivable upon such event by a
holder of the number of shares of Common Stock into which such Securities might
have been converted immediately prior to the occurrence of the event. (Section
1511) In addition to the foregoing adjustments, the Company will be permitted to
make such decreases in the Conversion Price as it considers to be necessary in
order that any event treated for federal income tax purposes as a dividend of
stock or stock rights will not be taxable to the holders of Common Stock.
(Section 1504) No adjustment for dividends other than certain stock dividends on
the Common Stock is to be made upon conversion. (Section 1502)
Subordination
The payment of the principal of (and premium, if any) and interest on the
Subordinated Securities is expressly subordinated, to the extent and in the
manner set forth in the Subordinated Indenture, in right of payment to the prior
payment in full of all present and future Senior Indebtedness of the Company.
(Section 1401) In the event of any insolvency or bankruptcy case or proceeding
or any receivership, liquidation, dissolution or other winding up of the
Company, the Holders of Senior Indebtedness shall be entitled to receive payment
in full of all amounts due or to become due on or in respect of all Senior
Indebtedness before the Holders of the Subordinated Securities are entitled to
receive any payment on the Subordinated Securities (subject to the power of
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a court of competent jurisdiction to make other equitable provision in a lawful
plan of reorganization under applicable bankruptcy laws), except that in any
such case or proceeding the Holders of the Subordinated Securities may be
entitled to receive securities of the Company which are subordinate and subject
to the prior payment in full of all Senior Indebtedness then outstanding. In the
event that the Subordinated Securities are declared due and payable before their
stated maturity because of the occurrence of an Event of Default, the Holders of
Senior Indebtedness then outstanding shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior
Indebtedness before the Holders of the Subordinated Securities are entitled to
receive any payment on account of the Subordinated Securities. During the
continuation of any default in the payment of principal of (or premium, if any)
or interest on any Senior Indebtedness beyond any applicable period of grace,
unless and until such default in payment shall have been cured or waived or
shall have ceased to exist, or in the event any judicial proceeding shall be
pending with respect to any such default, no payments may be made on the
Subordinated Securities by the Company. (Article Fourteen) By reason of such
subordination, in the event of insolvency or other specified eventualities, the
Holders of the Subordinated Securities may recover less, ratably, and the
holders of Senior Indebtedness may recover more, ratably, than other creditors
of the Company.
"Senior Indebtedness" means principal of (and premium, if any) and unpaid
interest on (a) indebtedness (secured or unsecured) incurred, assumed or
guaranteed, directly or indirectly, by the Company either before, on or after
the date of the Subordinated Indenture and which is for money borrowed
(including any obligation to pay or reimburse any bank in respect of letter of
credit drawings, payment of drafts or similar transactions), or which is
evidenced by notes, debentures, bonds or other similar securities whether or not
for money borrowed and (b) renewals, extensions or refundings of any such
indebtedness, unless it is provided by the instrument creating, evidencing,
renewing, extending or refunding the same or pursuant to which the same is
outstanding, that such indebtedness is not senior in right of payment to the
Subordinated Securities. (Section 101)
As of December 31, 1997, the Company had $955,733,000 aggregate principal
amount of Senior Indebtedness outstanding. The Subordinated Indenture does not
restrict the amount of additional Senior Indebtedness which may be incurred by
the Company.
Regarding the Subordinated Trustee
The Company has a $225,000,000 Revolving Credit Agreement and a
$125,000,000 364-Day Credit Agreement with a group of commercial banks,
including the Subordinated Trustee. Pursuant to the terms of these agreements,
the Subordinated Trustee has a commitment to loan the Company an aggregate of
$40,000,000.
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DESCRIPTION OF CAPITAL STOCK, RIGHTS AGREEMENT AND
RESTATED CERTIFICATE OF INCORPORATION
The following summaries of the Company's Preferred Stock, Common Stock and
the Rights Agreement do not purport to be complete and are qualified in their
entirety by reference to the Restated Certificate of Incorporation of the
Company and the Rights Agreement. The Restated Certificate of Incorporation and
the Rights Agreement are filed as exhibits to the Registration Statement of
which this Prospectus is a part. The summaries use terms which are defined in
such exhibits.
GENERAL
Under the Company's Restated Certificate of Incorporation, the Company is
authorized to issue (i) 200,000,000 shares of Common Stock, of which 60,885,994
shares were issued and outstanding at December 31, 1997, and (ii) 2,000,000
shares of Preferred Stock, none of which are issued and outstanding as of the
date of this Prospectus.
COMMON STOCK
Holders of the Common Stock are entitled to one vote per share on all
matters to be voted on by stockholders and are entitled, subject to any
preferential rights of holders of preferred stock, to receive such dividends, if
any, as may be declared from time to time by the Board in its discretion out of
funds legally available therefor. Upon any liquidation or dissolution of the
Company, the holders of the Common Stock are entitled, subject to any
preferential rights of holders of preferred stock, to receive pro rata all
assets remaining available for distribution to stockholders after payment of all
liabilities. The Common Stock has no preemptive or other subscriptive rights,
and there are no conversion rights or redemption or sinking fund provisions with
respect to the Common Stock. The vote of the holders of a majority of the Common
Stock is required for any action by the stockholders of the Company, except as
described under "Restated Certificate of Incorporation" below. The Company's
eight member Board is divided into three classes of directors serving staggered
three-year terms. The Company's Common Stock is listed on the New York Stock
Exchange under the symbol "APC".
PREFERRED STOCK
The Board, without further action by the stockholders, is authorized to
issue shares of preferred stock in one or more series, and to determine
preference as to dividends and in liquidation and voting, conversion, redemption
and other rights more favorable with respect to dividends and liquidation than
those of the holders of the Common Stock. The particular rights, preferences and
privileges of any series of Preferred Stock will be set forth in the Prospectus
Supplement. Such preferences and rights as may be established could have the
effect of impeding the acquisition of control of the Company. No such Preferred
Stock is outstanding as of the date of this Prospectus. Pursuant to the Rights
Agreement the Board has designated the Series A Junior Participating Preferred
Stock. If so specified in the applicable Prospectus Supplement, the Preferred
Stock may be represented by Depositary Shares entitling the holder
proportionally to all rights and preferences of the Preferred Stock.
RIGHTS AGREEMENT
On October 4, 1988, the Board adopted the Rights Agreement and declared a
dividend of one Right for each outstanding share of Common Stock. At the same
time, the Board redeemed rights which had been issued pursuant to the rights
agreement adopted on September 10, 1986.
Pursuant to the Rights Agreement, the Company will have outstanding one
Right for each share of Common Stock which is issued and outstanding prior to
the date the Rights become exercisable. Until the Rights become exercisable,
they will be evidenced by certificates for shares of Common Stock and
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will automatically trade with such stock. If and when the Rights become
exercisable, Rights certificates will be distributed and the Rights will become
separately transferable.
Each Right will entitle the registered holder to purchase from the Company
one two-hundredth of a share (a "Unit") of Series A Junior Participating
Preferred Stock of the Company, at a price of $80.00 per Unit (the "Purchase
Price"), subject to adjustment. In general, the Rights become exercisable (and
transferable apart from the Common Stock) on the earlier of (i) ten days
following a public announcement that a Person or group (an "Acquiring Person")
has acquired beneficial ownership of 20% or more of the Common Stock (the "Stock
Acquisition Date"), (ii) ten business days following the commencement of an
offer to acquire beneficial ownership of 25% or more of the Common Stock or
(iii) ten days after a Person has acquired at least 15% of the Common Stock and
the Board determines that (x) beneficial ownership by such person of such shares
is intended to cause the Company to repurchase the Common Stock owned by such
person or to pressure the Company into taking action intended to provide such
person with short-term financial gains under circumstances where the best
long-term interests of the Company and its stockholders would not be served or
(y) such person's beneficial ownership of the Common Stock is causing or
reasonably likely to cause a material adverse impact on the business or
prospects of the Company (any such person being referred to herein as an
"Adverse Person"). The date on which the Rights become exercisable is referred
to as the "Distribution Date".
In the event that (i) a Person becomes the beneficial owner of 25% or more
of the then outstanding shares of Common Stock (except pursuant to an offer for
all outstanding shares of Common Stock which a majority of the independent
directors on the Board determines to be fair to and otherwise in the best
interest of the Company and its stockholders), or (ii) the Board determines that
a Person is an Adverse Person, each holder of a Right will thereafter have the
right to receive, upon exercise, Common Stock (or other consideration) having a
value equal to two times the Purchase Price. Notwithstanding any of the
foregoing, following the occurrence of any of the events set forth in this
paragraph, all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were beneficially owned by any Acquiring Person or Adverse
Person will be null and void. However, Rights are not exercisable following the
occurrence of either of the events set forth above until such time as the Rights
are no longer redeemable by the Company.
In general, in the event that, following the Stock Acquisition Date, (i)
the Company shall consolidate with, or merge with and into, any other Person
(other than a Subsidiary of the Company), and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) any
Person (other than a Subsidiary of the Company) shall consolidate with, or merge
with or into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common Stock
shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property or (iii) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or Persons each
holder of a Right (except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, common stock
of such Person having a value equal to two times the Purchase Price of the
Right.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
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Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Board prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to cure
any ambiguity, to make changes which do not adversely affect the interests of
holders of Rights, or to shorten or lengthen any time period under the Rights
Agreement; except that no amendment to adjust the time period governing
redemption may be made if the Rights are not redeemable.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a Person or group that attempts to acquire the Company
in a manner which causes the Rights to become exercisable for shares of Common
Stock at less than fair market value unless the offer is conditioned on a
substantial number of Rights being acquired. The Rights, however, should not
affect any prospective offeror willing to make an offer at a fair price and
otherwise in the best interests of the Company and its stockholders, as
determined by a majority of the Directors who are not officers of the Company
and who are not affiliated with an Acquiring Person, or willing to negotiate
with the Board. The Rights should not interfere with any merger or other
business combination approved by the Board since the Board may, at its option,
at any time until ten days following the Stock Acquisition Date redeem all but
not less than all the then outstanding Rights at the Redemption Price.
The Rights will also adversely affect a Person who desires to obtain
control of the Company without acquiring 100% ownership and then to engage in
specified self-dealing transactions. The Rights will have no effect, however, on
a Person who is willing to acquire control of the Company and wait until the
Rights expire, without engaging in any self-dealing transactions, before
acquiring 100% ownership. The Rights will not affect a transaction approved by
the Board prior to the acquisition by any person or group of 20% of the Common
Stock, because the Rights may be redeemed before the consummation of such
transaction.
The Rights will expire at the close of business on October 20, 1998, unless
redeemed earlier by the Company. In general, the Company may redeem the Rights,
at a price of $0.01 per Right, at any time until ten days following the Stock
Acquisition Date, but Rights may not be redeemed if the Board has previously
declared a person to be an Adverse Person although the redemption right may be
reinstated under certain conditions.
RESTATED CERTIFICATE OF INCORPORATION
The Restated Certificate of Incorporation contains a "fair price"
provision, the purpose of which is to give greater assurance to the holders of
the Company's capital stock that they will receive fair and equitable treatment
in the event of certain "Business Combinations" with an "Interested Stockholder"
or certain related parties (or in which an "Interested Stockholder" or any such
related party has an interest other than proportionately as a stockholder) by
requiring that the Business Combination satisfy certain procedural safeguards,
or that the transaction be approved by the affirmative vote of not less than 80%
of all of the capital stock which by its terms may be voted on all matters
submitted to the stockholders of the Company generally ("Voting Stock").
The term "Interested Stockholder" is defined to include beneficial owners
of 5% or more of the Voting Stock. The term "Business Combination" is defined to
include, among other things, (a) a merger or consolidation of the Company or any
Subsidiary or adoption of a plan of liquidation of the Company, (b) a sale,
other disposition, loan or other arrangement (or a series of such transactions)
involving assets with a Fair Market Value (as defined) of $25,000,000 or more or
constituting more than 5% of total assets or, in the case of capital stock,
stockholders' equity of the entity in question, and (c) any amendment of the
By-Laws of the Company.
In addition to any affirmative stockholder vote otherwise applicable, a
Business Combination with an Interested Stockholder or certain related parties
(or in which an Interested Stockholder or any such related party has an interest
except proportionately as a stockholder) requires (1) the 80% vote
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referred to above, (2) approval by a majority of the Continuing Directors (as
defined) or (3) satisfaction of, among others, the following requirements:
(a) The consideration per share to be received in the Business
Combination by stockholders of each class shall be in cash or in the form
used to acquire beneficial ownership of the largest number of shares of
such class previously acquired by the Interested Stockholder. Such
consideration shall equal at least the highest of:
(i) the highest per share price offered or paid by the Interested
Stockholder for shares of such class within the three-year period prior
to the date of announcement of the Business Combination or in the
transaction in which the Interested Stockholder became such;
(ii) the Fair Market Value per share of such class on the date of
announcement of the Business Combination or the date on which the
Interested Stockholder became such, whichever is higher; or
(iii) the highest preferential amount per share (if any) to which
holders of shares of such class are entitled in the event of a
liquidation, dissolution or winding up of the Company;
(b) After the date on which the Interested Stockholder becomes such,
dividends shall not have been reduced (except as approved by a majority of
the Continuing Directors) and the Interested Stockholder shall not have
acquired additional shares of stock, except in certain limited
circumstances; and
(c) The Interested Stockholder shall not have made any major change in
the Company's business or equity capital structure without the approval of
a majority of the Continuing Directors.
The Restated Certificate of Incorporation further provides that
stockholders shall be entitled to cumulative voting at any time during which
there is a 30% Stockholder (defined generally to include any beneficial owner of
30% or more of the Voting Stock).
The existence of these provisions may make a merger or takeover of the
Company more difficult or discourage a merger or takeover of the Company, or the
acquisition of control of the Company, by another person or entity, and, as a
consequence, will make the removal of incumbent management more difficult.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell offered Securities to or through one or more
underwriters or dealers, and also may sell offered Securities directly to other
purchasers or through agents or through a combination of any such methods of
sale. Any underwriter or agent involved in the offer and sale of offered
Securities will be named in the Prospectus Supplement. The distribution of
offered Securities may be effected from time to time in one or more transactions
at a fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices.
The Company may from time to time authorize underwriters or dealers acting
as the Company's agents to offer and sell offered Securities upon the terms and
conditions to be set forth in the Prospectus Supplement. In connection with the
sale of offered Securities, underwriters or dealers may receive compensation
from the Company or from purchasers of offered Securities for whom they may act
as agents in the form of discounts, concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of offered Securities
may be deemed to be underwriters, and any discounts or commissions received by
them from the Company and any profit on the resale of offered Securities by them
may be deemed to be underwriting discounts and commissions under the Securities
16
<PAGE> 18
Act of 1933 (the "1933 Act"). Any such person who may be deemed to be an
underwriter will be identified, and any such compensation received from the
Company will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company as to each
distribution, underwriters, dealers and agents who participate in the
distribution of offered Securities may be entitled to indemnification or
contribution by the Company against certain liabilities, including liabilities
under the 1933 Act, and to reimbursement by the Company for certain expenses.
Certain of the underwriters, dealers or agents may engage in transactions
with and perform services for the Company in the ordinary course of business.
The specific terms and manner of sale of offered Securities will be set
forth or summarized in the Prospectus Supplement.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase offered Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases will be
subject to acceptance by the Company. The obligations of any purchaser under any
such contract will be subject to the condition that the purchase of offered Debt
Securities may not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
persons will not have any responsibility in respect of the validity or
performance of such contracts.
VALIDITY OF SECURITIES
The validity of the offered Securities will be passed upon for the Company
by Davis Polk & Wardwell and for any underwriters, dealers or agents by Hughes
Hubbard & Reed LLP.
EXPERTS
The consolidated financial statements of Anadarko Petroleum Corporation and
subsidiaries as of December 31, 1997 and 1996 and for each of the years in the
three-year period ended December 31, 1997 incorporated by reference in the
Registration Statement have been incorporated herein in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, incorporated
by reference herein, and upon the authority of such firm as experts in
accounting and auditing.
17
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses which will be paid by the Company are as follows:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $118,000
Accounting Fees and Expenses................................ 110,000
Blue Sky Fees and Expenses.................................. 15,000
Legal Fees and Expenses..................................... 50,000
Printing and Engraving...................................... 75,000
Fees and Expenses of Trustees and Counsel................... 60,000
Rating Agency Fees.......................................... 125,000
Miscellaneous............................................... 10,000
--------
TOTAL............................................. $563,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for
indemnification of officers and directors under certain conditions.
Article IX of the By-Laws of the Company provides for indemnification of
officers and directors to the fullest extent which may be provided by a by-law
under applicable law.
The Company maintains insurance for officers and directors of the
Registrant against certain liabilities, including liabilities under the
Securities Act of 1933, under insurance policies, the premiums of which are paid
by the Company. The effect of these is to indemnify any officer or director of
the Registrant against expenses, judgments, attorney's fees and other amounts
paid in settlements incurred by an officer or director upon a determination that
such person acted in good faith.
ITEM 16. EXHIBITS.
Exhibits not incorporated by reference to a prior filing are designated by
an asterisk (*) and are filed herewith; all exhibits not so designated are
incorporated by reference to a prior filing as indicated.
<TABLE>
<C> <S>
(1) -- (a) Form of Underwriting Agreement relating to the Debt
Securities.*
(c) Form of Distribution Agreement (originally filed as
Exhibit 1(c) to Form S-3 filed on October 22, 1993,
Registration No. 33-50717).
(d) Form of Underwriting Agreement relating to the Equity
Securities.*
(4) -- (a) Senior Indenture (originally filed as Exhibit 4(j) to
Form 10-K for the year ended December 31, 1997).
(b) Form of Senior Debt Security (included in Article Two of
Exhibit 4(a)).
(c) Form of Subordinated Indenture (originally filed as
Exhibit 4(c) to Form S-3 filed on July 7, 1997,
Registration No. 333-30927).
(d) Form of Subordinated Debt Security (included in Article
Two of Exhibit 4(c)).
(e) Restated Certificate of Incorporation of the Company,
dated August 28, 1986 (originally filed as Exhibit
19(a)(i) to Form 10-Q for quarter ended September 30,
1986, File No. 1-8968).
(f) Rights Agreement, dated as of October 4, 1988, between
the Company and Manufacturers Hanover Trust Company
(originally filed as Exhibit 4 to Form 8-K, dated
October 5, 1988, File No. 1-8968).
(5) -- Opinion of Counsel to the Company.*
</TABLE>
II-1
<PAGE> 20
<TABLE>
<C> <S>
(12) -- Consolidated Statement of Computation of Ratio of Earnings to Fixed Charges and Earnings to Combined
Fixed Charges and Preferred Stock Dividends. (originally filed as Exhibit 12 to Form 10-K for year
ended December 31, 1997. File No. 1-8968.)
(23) -- (a) Consent of Counsel to the Company (included in Exhibit 5).
(b) Consent of KPMG Peat Marwick LLP.*
(24) -- Powers of Attorney.*
(25) -- (a) Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, on
Form T-1 of Harris Trust and Savings Bank.*
(b) Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, on
Form T-1 of First National Bank of Chicago.*
</TABLE>
- ---------------
* Filed herewith
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
II-2
<PAGE> 21
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 22
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE 18TH DAY OF MARCH,
1998.
ANADARKO PETROLEUM CORPORATION
By ROBERT J. ALLISON, JR.*
------------------------------------
Robert J. Allison, Jr.,
Chairman of the Board, President
and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON 18TH DAY OF MARCH, 1998:
<TABLE>
<CAPTION>
SIGNATURE TITLE
<C> <C> <S> <C>
(I) PRINCIPAL EXECUTIVE OFFICER:*
ROBERT J. ALLISON, JR. Chairman of the Board, President
--------------------------------------------------- and Chief
Robert J. Allison, Jr. Executive Officer
(II) PRINCIPAL FINANCIAL OFFICER:*
MICHAEL E. ROSE Senior Vice President,
--------------------------------------------------- Finance and Chief
Michael E. Rose Financial Officer
(III) PRINCIPAL ACCOUNTING OFFICER:*
JAMES R. LARSON Vice President and Controller
---------------------------------------------------
James R. Larson
(IV) DIRECTORS:*
ROBERT J. ALLISON, JR.
---------------------------------------------------
Robert J. Allison, Jr.
CONRAD P. ALBERT
---------------------------------------------------
Conrad P. Albert
LARRY BARCUS
---------------------------------------------------
Larry Barcus
RONALD BROWN
---------------------------------------------------
Ronald Brown
JAMES L. BRYAN
---------------------------------------------------
James L. Bryan
</TABLE>
II-4
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURE
<C> <C> <S> <C>
JOHN R. BUTLER, JR.
---------------------------------------------------
John R. Butler, Jr.
JOHN R. GORDON
---------------------------------------------------
John R. Gordon
JOHN N. SEITZ
---------------------------------------------------
John N. Seitz
</TABLE>
* Signed on behalf of the registrant and each of these persons:
By SUZANNE SUTER
---------------------------------
(Suzanne Suter, Attorney-in-Fact)
II-5
<PAGE> 24
EXHIBIT INDEX
<TABLE>
<C> <S>
(1) -- (a) Form of Underwriting Agreement relating to the Debt
Securities.*
(c) Form of Distribution Agreement (originally filed as
Exhibit 1(c) to Form S-3 filed on October 22, 1993,
Registration No. 33-50717).
(d) Form of Underwriting Agreement relating to the Equity
Securities.*
(4) -- (a) Senior Indenture. (originally filed as Exhibit 4(j) to
Form 10-K for the year ended December 31, 1997).
(b) Form of Senior Debt Security (included in Article Two of
Exhibit 4(a)).
(c) Form of Subordinated Indenture. (originally filed as
Exhibit 4(c) to Form S-3 filed on July 7, 1997,
Registration No. 333-30927).
(d) Form of Subordinated Debt Security (included in Article
Two of Exhibit 4(c)).
(e) Restated Certificate of Incorporation of the Company,
dated August 28, 1986 (originally filed as Exhibit
19(a)(i) to Form 10-Q for quarter ended September 30,
1986, File No. 1-8968).
(f) Rights Agreement, dated as of October 4, 1988, between
the Company and Manufacturers Hanover Trust Company
(originally filed as Exhibit 4 to Form 8-K, dated
October 5, 1988, File No. 1-8968).
(5) -- Opinion of Counsel to the Company.*
(12) -- Consolidated Statement of Computation of Ratio of Earnings
to Fixed Charges and Earnings to Combined Fixed Charges
and Preferred Stock Dividends. (originally filed as
Exhibit 12 to Form 10-K for year ended December 31, 1997.
File No. 1-8968.)
(23) -- (a) Consent of Counsel to the Company (included in Exhibit
5).
(b) Consent of KPMG Peat Marwick LLP.*
(24) -- Powers of Attorney.*
(25) -- (a) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
Harris Trust and Savings Bank.*
(b) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
First National Bank of Chicago.*
</TABLE>
- ---------------
* Filed herewith
<PAGE> 1
EXHIBIT 1(a)
ANADARKO PETROLEUM CORPORATION
(a Delaware corporation)
Debt Securities
1998 UNDERWRITING AGREEMENT
(Standard Provisions)
To the Representatives of the several Underwriters named in the respective Terms
Agreements hereinafter described.
Dear Sirs:
Anadarko Petroleum Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to $300,000,000 aggregate principal amount of its
debt securities (the "Securities") in one or more offerings on terms determined
at the time of sale. The Securities will be issued under an indenture specified
in the applicable Terms Agreement (the "Indenture"). Each issue of Securities
may vary as to aggregate principal amount, currency, maturity, interest rate or
rates and timing of payments thereof, redemption provisions and sinking fund
requirements, if any, and any other variable terms which the Indenture
contemplates may be set forth in the Securities as issued from time to time.
The term "you" or "your" as used herein, unless the context otherwise
requires, shall mean such of the parties to whom this Agreement is addressed as
are named in the applicable Terms Agreement. References to this Agreement
include, where the context so requires, the applicable Terms Agreement.
Each offering of Securities will be made through one or more of you or
through an underwriting syndicate managed by one or more of you. Whenever the
Company determines to make an offering of Securities, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Securities to,
and the purchase and offering thereof by, one or more of you and such other
underwriters, if any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the "Underwriters", which term shall include
you whether acting alone in the sale of Securities or as members of an
underwriting syndicate). The Terms Agreement relating to each offering of
Securities shall specify the principal amount of Securities to be issued,
whether such Securities are senior or subordinated debt securities, and their
terms not otherwise specified in the Indenture, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section 9
hereof) and the principal amount of Securities which each Underwriter severally
agrees to purchase, the names of such of you and such other Underwriters, if
any, acting as co-managers in connection with such offering, the price at which
the Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, any delayed delivery arrangements and the time
and place of delivery and payment. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between you and the Company.
Each offering of Securities will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter participating
in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 relating to the Securities
and offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and has 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, as amended (the "1939 Act"). Such registration statement, as amended,
and the prospectus relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated therein by
reference, as from time to
<PAGE> 2
time amended or supplemented pursuant to the Securities Exchange Act of 1934
(the "1934 Act"), the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided, however,
that a supplement of the Prospectus contemplated by Section 3(a) hereof (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Securities to which it relates.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each of you, and to each Underwriter named in a Terms Agreement as
of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the
Representation Date, complied, and will comply, in all material
respects with the requirements of the 1933 Act and the rules and
regulations thereunder (the "1933 Act Regulations") and the 1939 Act,
and the rules and regulations thereunder (the "1939 Act Regulations");
the Registration Statement, at the time the Registration Statement
became effective and as of the Representation Date, did not, and will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, at the time the
Registration Statement became effective and as of the Representation
Date, did not, and will not, contain 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 (i) statements in
or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter expressly for use in the
Registration Statement or Prospectus or (ii) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
Trustee under the Indenture.
(b) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied, and will comply, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or become
effective, and when filed under the 1934 Act, did not, and will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
(c) The accountants who certified the financial statements
included or incorporated in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(d) The consolidated financial statements included or
incorporated in the Registration Statement and Prospectus present
fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of their
operations and the changes in their financial position for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles consistently applied
during the period, except as stated therein.
(e) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein or
contemplated thereby, there has been (A) no material adverse change in
the condition, financial or otherwise, of the Company and its
subsidiaries taken as a whole and (B) no litigation or governmental
proceeding instituted or, to the knowledge of the Company, threatened
against the Company or any subsidiary which would reasonably be
expected to have any material adverse effect on the financial condition
of the Company and its subsidiaries taken as a whole.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with the corporate power and authority to own, lease and
2
<PAGE> 3
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent
that the failure to be so qualified or licensed or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(g) Each subsidiary of the Company listed in Exhibit 21 to the
most recent Annual Report on Form 10-K on file with the Commission (a
"Significant Subsidiary") is a duly incorporated and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus. Each Significant Subsidiary is duly qualified or licensed
to do business as a foreign corporation in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification or licensing, except to
the extent that the failure to be so qualified or licensed or be in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole. The issued and outstanding
common stock of each of the Significant Subsidiaries has been duly
authorized and validly issued and is fully paid and non-assessable and
is owned by the Company free and clear of any mortgages, liens or
similar encumbrances.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its certificate of incorporation or by-laws, and the
Company is not in default in the performance or observance of any
obligation in any indenture, mortgage, evidence of indebtedness or
similar agreement or instrument to which it is a party or by which it
or any of its properties may be bound which default would have a
material adverse effect on the Company and its subsidiaries taken as a
whole. The execution and delivery of this Agreement, the Indenture, the
Terms Agreement and any Delayed Delivery Contract (as defined below)
and the consummation of the transactions contemplated herein and
therein and the incurrence of the obligations herein and therein set
forth, have been or will be duly authorized by all necessary corporate
action and do not and will not, conflict with, or constitute or result
in a breach of or default under, the certificate of incorporation or
by-laws of the Company or any law, order, rule, regulation or court
decree or, except for any such conflict, breach or default which would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole, any bond, debenture, note or other evidence of
indebtedness or any material contract, lease, license, indenture,
mortgage, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties may be
bound.
(i) No consent, approval, authorization, order or
qualification or registration of or with any court or governmental
agency or body is required for the consummation of the transactions
contemplated in this Agreement, except for (i) the registration of the
offer and sale of the Securities under the 1933 Act and such consents,
approvals, authorizations, orders, qualifications or registrations as
may be required under the Blue Sky or securities laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and (ii) the qualification of the
Indenture under the 1939 Act.
(j) The Company and each Significant Subsidiary possess such
valid franchises, certificates of convenience and necessity, easements,
rights-of-way, operating rights, licenses, permits, consents,
authorizations and orders of governmental political subdivisions or
regulatory authorities as, in the opinion of the Company, are
materially necessary to carry on the respective businesses of each as
described in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(1) The Indenture has been duly authorized by the Company and
(assuming due authorization, execution and delivery thereof by the
Trustee) when executed and delivered by the Company will constitute the
valid and binding agreement of the Company except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws now or
3
<PAGE> 4
hereafter in effect relating to creditors' rights generally and general
principles of equity whether enforcement is sought at law or in equity,
and the Indenture has been qualified under the 1939 Act.
(m) The Securities have been duly authorized for issuance and
sale pursuant to this Agreement (or will have been so authorized prior
to each issuance of Securities) and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration therefor in accordance
with this Agreement, the Securities will be valid and binding
obligations of the Company entitled to the benefits of the Indenture;
and the Securities and the Indenture conform or will conform at the
time of their issuance or execution, as the case may be, in all
material respects to all statements relating thereto contained in the
Prospectus.
(n) In the case of Securities convertible into Common Stock of
the Company, $0.10 par value (the "Common Stock"), the shares of Common
Stock issuable upon the conversion of the Securities have been reserved
for issuance and, when issued upon conversion of such Securities in
accordance with the terms of the Indenture, will be duly authorized,
validly issued, fully paid and non-assessable and will conform to the
description thereof in the Prospectus. Stockholders of the Company have
no preemptive rights with respect to shares of Common Stock into which
the Securities may be converted.
(o) In the case of Securities convertible into Common Stock,
any rights to purchase capital securities of the Company issuable in
conjunction with Common Stock ("Rights") issuable upon the conversion
of the Securities are duly authorized and, when issued, will be validly
issued and will conform to the description thereof in the Prospectus.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase, and the obligation of the Company to sell, Securities
pursuant to any Terms 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 set forth.
Payment of the purchase price for, and delivery of, any Securities to
be purchased by the Underwriters shall be made at such time and place and on
such date as specified in the applicable Terms Agreement unless postponed in
accordance with the provisions of Section 9 (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company in
Federal or other funds immediately available in New York City or by such other
means as may be specified in the Terms Agreement against delivery to you for the
respective accounts of the Underwriters of the Securities to be purchased by
them. Such Securities shall be in such denominations and registered in such
names as you may request in writing at least two business days prior to the
applicable Closing Time. Such Securities, which will be in definitive or
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase 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 may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
to you at Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Securities for which Delayed Delivery
Contracts are made at Closing Time as is specified in the applicable Terms
Agreement. Payment for such compensation shall be made in Federal or other funds
immediately available in New York City or by such other means as may be
specified in the Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types set forth in the Prospectus. At Closing
Time the Company will enter into Delayed Delivery Contracts (for not less than
the minimum principal amount of Securities per Delayed Delivery Contract
specified in the applicable Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as provided below, but not
for an aggregate principal amount of Securities in excess of that specified in
the applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
4
<PAGE> 5
You are to submit to the Company, within a reasonable time prior to
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 Securities to be purchased by each of them, and the Company will
advise you, within a reasonable time after receipt of such names and prior to
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is reasonably objected to by the Company and the principal
amount of Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the
respective Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the principal amount of Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the total amount of
Securities covered by the applicable Terms Agreement, less the principal amount
of Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with each of
you, and with each Underwriter participating in the applicable offering of
Securities, as follows with respect to such offering of Securities:
(a) As soon as practicable, following the execution of the
applicable Terms Agreement, the Company will prepare a Prospectus
Supplement setting forth the principal amount of Securities covered
thereby and their terms not otherwise specified in the Indenture, the
names of the Underwriters participating in the offering and the
principal amount of Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which the 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 you and
the Company deem appropriate in connection with the offering of the
Securities. The Company will transmit copies of the Prospectus
Supplement to the Commission in compliance with Rule 424 of the 1933
Act Regulations and will furnish to the Underwriters named therein as
many copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request for the purposes contemplated by the 1933 Act
or the 1933 Act Regulations.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of such Securities any
event shall occur or condition exist as a result of which it is
necessary to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading in the light of circumstances existing at the
time it is delivered to a purchaser or if it shall be necessary at any
time 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 will, as soon as practicable,
prepare and file (if required) with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such
requirements.
(c) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 18
months after the date of the Prospectus Supplement relating to such
Securities, earnings statements of the Company and its subsidiaries
(which need not be audited) complying with Section 11 (a) of the 1933
Act and the 1933 Act Regulations (including at the option of the
Company Rule 158).
(d) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of
such Securities, will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed in a reasonable time
for review by the Underwriters in advance of filing.
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(e) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered by you in connection with
sales of Securities, will notify each of you, as soon as practicable,
and confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any 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 and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of the threat or initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you, as soon as
practicable, as many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3 under the 1933 Act) as you may reasonably request and will also
deliver to you a conformed copy of the Registration Statement and each
amendment thereto for each of the Underwriters.
(g) The Company will cooperate with you to qualify such
Securities for offering and sale under the applicable Blue Sky or
securities laws of such states and other jurisdictions of the United
States as you may designate, and will cooperate in maintaining such
qualifications in effect for as long as may be required for the
distribution of such Securities except that the Company shall not be
obligated to file any general consent to service or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified. In each jurisdiction in which such
Securities or the sale thereof shall have been qualified as above
provided, the Company will cooperate with you to make and file such
statements and reports in each year as may be required by the laws of
such jurisdiction. The Company will cooperate in the determination of
the eligibility for investment of the Securities under the laws of such
jurisdictions as you reasonably request.
(h) Between the date of the Terms Agreement and Closing Time
with respect to the Securities covered thereby, the Company will not,
without your prior consent, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with a maturity of more
than one year and with other terms substantially similar to the
Securities covered thereby, including additional Securities or in the
case of Securities convertible into Common Stock, Common Stock except
Common Stock issued pursuant to any Company stock option plan,
restricted stock plan or any other employee benefit plan.
SECTION 4. Conditions of Your Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company herein contained as of the date of the Terms
Agreement and as of the applicable Closing Time, to the performance by the
Company in all material respects of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and (ii) the rating assigned by any
nationally recognized securities rating agency to any debt securities
of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since the execution of such Terms Agreement.
(b) At the applicable Closing Time you shall have received
signed copies of:
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(1) The opinion, dated as of the applicable Closing
Time, of special counsel for the Company specified in the
Prospectus, in form and substance satisfactory to you, to the
effect that:
(i) The Company is duly incorporated and
validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has the corporate power and
corporate authority to own, lease and operate its
properties and conduct its business as described in
the Prospectus.
(iii) This Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by
the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming
due authorization, execution and delivery by the
Trustee, is a valid and legally binding agreement,
enforceable against the Company in accordance with
its terms, except as (i) may be limited by
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of
acceleration and availability of equitable remedies
may be limited by equitable principles of general
applicability.
(v) The specimen of the Securities covered
by the applicable Terms Agreement and examined by
them is in the form contemplated by the Indenture;
the Securities covered by the applicable Terms
Agreement have been duly authorized and executed by
the Company, and, when executed and authenticated in
accordance with the terms of the Indenture and
delivered against payment pursuant to this Agreement,
as supplemented by the applicable Terms Agreement, or
any applicable Delayed Delivery Contracts, will be
valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as
(i) may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally
and (ii) rights of acceleration and availability of
equitable remedies may be limited by equitable
principles of general applicability.
(vi) In the case of Securities convertible
into Common Stock, the shares of Common Stock
issuable upon the conversion of the Securities have
been reserved for issuance and, when issued upon
conversion of such Securities in accordance with the
terms of the Indenture, will be duly authorized,
validly issued, fully paid and non-assessable and
will conform to the description thereof in the
Prospectus. Stockholders of the Company have no
preemptive rights with respect to shares of Common
Stock into which the Securities may be converted.
(vii) The Indenture has been duly qualified
under the 1939 Act.
(viii) The Registration Statement is
effective under the 1933 Act and, to the best of
their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(ix) No regulatory consent, authorization,
approval or filing is required by the laws of the
United States or of any state thereof for the
issuance, sale and delivery of the Securities covered
by the applicable Terms Agreement by the Company to
the Underwriters except such as have been obtained or
made under the 1933 Act, the 1934 Act, the 1939 Act
and other applicable legislation specified in such
opinion and such as
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<PAGE> 8
may be required under state securities or Blue Sky
laws in connection with the purchase and distribution
of the Securities by you.
(x) The execution and delivery of this
Agreement, any applicable Terms Agreement, any
applicable Delayed Delivery Contracts and the
Indenture, the issuance of Securities covered by the
applicable Terms Agreement, the incurrence of the
obligations set forth herein and therein, and the
consummation of the transactions herein and therein
contemplated do not and will not conflict with or
constitute or result in a breach of, or default
under, the certificate of incorporation or by-laws,
each as in effect at the applicable Closing Time, of
the Company.
(xi) (A) Such counsel is of the opinion that
the Registration Statement and the Prospectus and any
supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations; and (B) nothing which has
come to the attention of such counsel has caused them
to believe that the Registration Statement at the
time of the applicable Terms Agreement (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any belief and except for
that part of the Registration Statement that
constitutes the Form T-1 hereinafter referred to)
contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as
amended or supplemented, if applicable, contains any
untrue statement of a material fact or omits to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
With respect to subparagraph (xi) above, such counsel may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
In rendering the foregoing opinion or opinions, such counsel shall
opine only as to the Federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware. Such counsel
may also state that they have relied as to certain matters on information
obtained from public officials, officers of the Company and other sources
believed by them to be responsible. In rendering the foregoing opinion, special
counsel for the Company shall have received and may rely upon such certificates
and other documents and information as they may reasonably request to pass upon
such matters.
(2) The opinion or opinions, dated as of the
applicable Closing Time, of the General Counsel or Associate
General Counsel of the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company and each Significant
Subsidiary is duly qualified or licensed to do
business as a foreign corporation in good standing in
each jurisdiction in which the conduct of its
business or its ownership or leasing of property
requires such qualification or licensing, except to
the extent that the failure to be so qualified or
licensed or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries taken as a whole.
(ii) 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 with full corporate
power and authority to own, lease and operate its
properties and conduct its business as described in
the Registration Statement.
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<PAGE> 9
(iii) The issued and outstanding common
stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and
non-assessable; and the Company owns the issued and
outstanding common stock of each Significant
Subsidiary free and clear of any mortgages, liens or
similar encumbrances.
(iv) In the case of Securities convertible
into Common Stock, any Rights issuable upon the
conversion of the Securities are duly authorized and,
when issued, will be validly issued and will conform
to the description thereof in the Prospectus.
(v) To the knowledge of such counsel, the
execution and delivery of this Agreement, any
applicable Terms Agreement, any Delayed Delivery
Contracts and the Indenture, the issuance of the
Securities, the incurrence of the obligations set
forth herein and therein and the consummation of the
transactions herein and therein contemplated do not
and will not conflict with or constitute or result in
a breach of, or default under, (a) any judgment,
order or decree of any domestic government,
governmental instrumentality or court having
jurisdiction over the Company, any Significant
Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or
(b) any provision of any indenture, mortgage or
similar agreement or instrument known to such counsel
to which the Company or any Significant Subsidiary is
a party or by which they or any material part of
their property is bound except for such conflicts,
breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries
taken as a whole.
(vi) No regulatory consent, authorization,
approval or filing is required by the laws of the
State of Texas or, to the best of his knowledge, any
other state for the issuance, sale and delivery of
the Securities covered by the applicable Terms
Agreement by the Company to the Underwriters except
such as have been obtained or made under the 1933
Act, the 1934 Act, the 1939 Act and other applicable
legislation specified in such opinion and such as may
be required under state securities or Blue Sky laws
in connection with the purchase and distribution of
the Securities by you.
(vii) Such counsel does not know of any
litigation or any governmental proceeding instituted
or threatened against the Company or any Significant
Subsidiary which would be required to be disclosed in
the Prospectus and which is not disclosed.
(viii) (A) Such counsel is of the opinion
that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations and the documents
incorporated by reference therein complied as to form
in all material respects when filed with the 1934 Act
and the 1934 Act Regulations; and (B) nothing which
has come to the attention of such counsel in the
course of his representation of the Company has
caused him to believe that any part of the
Registration Statement at the time of the applicable
Terms Agreement (except for financial statements or
other financial or statistical data contained therein
as to which such counsel need not express any belief
and except for that part of the Registration
Statement that constitutes the Form T-1 hereinafter
referred to) contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading and the
Prospectus, as amended or supplemented, if
applicable, does not contain any untrue statement of
a material fact or omit to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading.
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With respect to subparagraph (vii) above, such counsel may state that
he does not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and Prospectus except
for those made under the captions "Description of Debt Securities" and
"Description of Offered Debt Securities" (or similar caption) insofar as they
relate to provisions of documents therein described.
In rendering the foregoing opinion or opinions, such counsel shall
opine only as to matters governed by the Federal laws of the United States, the
laws of the State of Texas and the General Corporation Law of the State of
Delaware. Such counsel may also state that he has relied as to certain matters
on information obtained from public officials, officers of the Company and other
sources believed by him to be responsible.
(3) The opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters
specified in the Prospectus, with respect to the validity of
the Securities, the Registration Statement, the Prospectus and
other related matters as you reasonably may request. In
rendering the foregoing opinion, such counsel may rely, to the
extent recited therein, as to matters involving the laws of
any jurisdiction other than the States of Delaware and New
York, upon opinions of local counsel. Such counsel may also
state that they have relied as to certain matters on
information obtained from public officials, officers of the
Company and other sources believed by them to be responsible.
(c) At the applicable Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries taken as a whole, and you shall have received a
certificate of the Chairman of the Board, President or a Vice President
of the Company, dated as of such Closing Time, that to the best of his
knowledge after reasonable investigation, there has been no such
material adverse change or development involving such a prospective
material adverse change, the representations and warranties of the
Company contained in Section 1 are true and correct in all material
respects with the same force and effect as though expressly made at and
as of such Closing Time, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened by the Commission.
(d) At the applicable Closing Time, you shall have received
from KPMG Peat Marwick LLP a letter, dated such date, in form and
substance satisfactory to you, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Company and its subsidiaries
contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities 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 in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to you
and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the applicable
Terms Agreement may be terminated by you by notice to the Company at any time at
or prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as otherwise provided in
Sections 5 and 6.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities to the
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Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Securities under Blue Sky or
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the fees and disbursements of counsel in connection therewith
and in connection with the preparation of any Blue Sky Survey and Legal
Investment Survey, (v) 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, (vi) all fees and disbursements of the Trustee and counsel to the
Trustee, (vii) the fees of rating agencies and (viii) the fees and expenses, if
any, incurred in connection with the listing of the Securities on the New York
Stock Exchange.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 8 (i), the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their reasonable
out-of-pocket expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with such Terms Agreement and the proposed
offering, purchase and sale of the related Securities. Except as otherwise
provided in this Section 5, the Company shall not be required to pay your
expenses or those of other Underwriters.
SECTION 6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
The foregoing indemnity with respect to any untrue statement contained
in or omission from any preliminary prospectuses shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter)
from whom the person asserting any such loss, liability, claim or
damages purchased any of the Securities which are the subject thereof
if the untrue statement contained in or omission from any preliminary
prospectuses or any preliminary prospectus supplement was corrected in
a Prospectus (or any amendment or supplement thereto) but such person
did not receive a copy of such Prospectus (or any amendment or
supplement thereto) at or prior to confirmation of the sale of such
Securities to such person in any case where such delivery is required
by the 1933 Act, unless such failure to receive a copy of such
amendment or supplement resulted from non-compliance by the Company
with Sections 3(a) or (b) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 6(a) or 6(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and
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disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified
pursuant to Section 6(a), and by the Company, in the case of parties
indemnified pursuant to Section 6(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 6(d)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 6(d)(i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate Public Offering Price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective number of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 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 that does not take account of the equitable considerations
referred to in Section 6(d). The amount paid or payable by an
indemnified
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party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Securities.
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
SECTION 8. Termination. This Agreement may be terminated for any reason
at any time by either the Company or a majority of you upon the giving of 30
days' written notice of such termination to the other parties hereto. Such of
you as may be named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries taken as a whole, or in the
earnings, business or operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any new outbreak of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in the reasonable judgment of such of you as are named in such Terms
Agreement, impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading generally on either the American
Stock Exchange or the New York Stock Exchange has 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 such exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of any
such termination, the provisions of Sections 5, 6, 7 and 12 shall remain in
effect.
SECTION 9. Default. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time to purchase
the Securities which it or they are obligated to purchase hereunder and under
the applicable Terms Agreement (the "Defaulted Securities"), then such of you as
are named therein shall have the right, within 36 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 36 hours you shall not have completed such
arrangements for the purchase of all of the Defaulted Securities, and if the
Company shall not have completed arrangements for the purchase of all, but not
less than all, of the Defaulted Securities by other underwriters satisfactory to
such of you as are named in the applicable Terms Agreement, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities
to be purchased pursuant to such Terms Agreement (other
13
<PAGE> 14
than Securities to be purchased pursuant to Delayed Delivery
Contracts), the nondefaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations under the applicable Terms
Agreement bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement (other than Securities to be
purchased pursuant to Delayed Delivery Contracts), the applicable Terms
Agreement shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section which does not result in a termination of the applicable
Terms Agreement, either you or the Company shall have the right to postpone the
applicable Closing Time for a period of not exceeding seven days in order that
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you, at the address indicated in the
applicable Terms Agreement; and notices to the Company shall be directed to it
at 17001 Northchase Dr., Houston, Texas 77060, attention of Vice President and
Treasurer, or to such other address or person as may be designated in any such
notice.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement and their respective successors. Nothing expressed or
mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and such 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 any
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
14
<PAGE> 15
EXHIBIT A
ANADARKO PETROLEUM CORPORATION
Debt Securities
TERMS AGREEMENT
Dated:
----------
To: Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77060
Attention: Vice President and Treasurer
Re: 1998 Underwriting Agreement (Standard Provisions)
Title of Securities:
Indenture:
Principal amount to be issued: $
Current ratings:
Interest rate: Payable:
Date of maturity:
Public offering price:
Purchase price:
Specified funds for payment of purchase price:
Closing date and location:
Additional co-managers, if any:
Subject to the terms and provisions of the above referenced Underwriting
Agreement, which is incorporated herein in its entirety and made a part hereof,
the Company agrees to sell and each Underwriter severally agrees to purchase the
principal amount of Securities set forth opposite its name.
<TABLE>
<CAPTION>
Name Principal Amount
---- ----------------
<S> <C>
$
</TABLE>
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Initial conversion price:
Initial conversion date:
Final conversion date:
<PAGE> 16
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %.
Other terms:
We represent that as representatives of the several Underwriters we are
entitled to execute this Terms Agreement on behalf of the several Underwriters
and otherwise to act as representatives on their behalf. The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given by
us as representatives of the several Underwriters.
[UNDERWRITER NAME]
By
---------------------------------
Acting on behalf of themselves
and the other named Underwriters.
Address for Notices:
Accepted:
ANADARKO PETROLEUM CORPORATION
By
----------------------------
<PAGE> 17
EXHIBIT B
ANADARKO PETROLEUM CORPORATION
Debt Securities
Dated:
-----------
DELAYED DELIVERY CONTRACT
ANADARKO PETROLEUM CORPORATION
17001 Northchase Drive
Houston, Texas 77060
Attention: Senior Vice President, Finance
Dear Sirs:
The undersigned hereby agrees to purchase from Anadarko
Petroleum Corporation (the "Company"), and the Company agrees to sell
to the undersigned on ________________________________(the "Delivery
Date"), $______________________ principal amount of the Company's
[insert title of security] (the "Securities"), offered by the Company's
Prospectus dated _____________________________, as supplemented by its
Prospectus Supplement dated ____________________________, 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 certified or official bank check in New York Clearing House funds,
at the office of , on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in
definitive 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 five full business
days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date shall be subject only to
the conditions that (1) the purchase of Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject and (2) the
Company, on or before , 19 , shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the 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
Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other
contracts similar to this contract. The undersigned represents and
warrants to you that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
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 relating to the validity and binding effect
of the Securities 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 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.
<PAGE> 18
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 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, 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 and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
(Name of Purchaser)
By
-----------------------------------
(Title)
-------------------------------------
(Address)
Accepted as of the date first above written.
ANADARKO PETROLEUM 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 may be
discussed are as follows: (Please print.)
<TABLE>
<CAPTION>
Name Telephone Number
---- ----------------
<S> <C>
</TABLE>
<PAGE> 1
EXHIBIT 1(d)
ANADARKO PETROLEUM CORPORATION
(a Delaware corporation)
Equity Securities
1998 UNDERWRITING AGREEMENT
(Standard Provisions)
To the Representatives of the several Underwriters named in
the respective Terms Agreements hereinafter described.
Dear Sirs:
Anadarko Petroleum Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to $300,000,000 aggregate initial public offering
price of its equity securities (the "Securities") in one or more offerings on
terms determined at the time of sale. Each issue of Securities may vary as to
number of shares, liquidation values, dividend rate or rates and timing of
payments thereof, redemption provisions and conversion provisions, if any, and
any other variable terms.
The term "you" or "your" as used herein, unless the context otherwise
requires, shall mean such of the parties to whom this Agreement is addressed as
are named in the applicable Terms Agreement. References to this Agreement
include, where the context so requires, the applicable Terms Agreement.
Each offering of Securities will be made through one or more of you or
through an underwriting syndicate managed by one or more of you. Whenever the
Company determines to make an offering of Securities, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Securities to,
and the purchase and offering thereof by, one or more of you and such other
underwriters, if any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the "Underwriters", which term shall include
you whether acting alone in the sale of Securities or as members of an
underwriting syndicate). The Terms Agreement relating to each offering of
Securities shall specify the class, designation and terms of the Securities to
be issued, the names of the Underwriters participating in such offering (subject
to substitution as provided in Section 9 hereof) and the number of Securities
which each Underwriter severally agrees to purchase (collectively, the "Firm
Securities") the names of such of you and such other Underwriters, if any,
acting as co-managers in connection with such offering, the price at which the
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price and the time and place of delivery and payment. In
addition, the Terms Agreement shall specify the maximum number of Securities, if
any (the "Additional Securities"), that the Company proposes to issue and sell
to the Underwriters if and to the extent that you shall have determined to
exercise, on behalf of the several Underwriters, the right to purchase such
Additional Securities. The Terms Agreement, which shall be substantially in the
form of Exhibit A hereto, may take the form of an exchange of any standard form
of written telecommunication between you and the Company. Each offering of
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 relating to the Securities
and offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act") , and has 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. Such registration statement, as amended, and the prospectus relating
to the sale of Securities by the Company constituting a part thereof, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided, however, that a
supplement of the Prospectus contemplated by Section 3(a) hereof (a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only with
respect to the offering of Securities to which it relates.
<PAGE> 2
SECTION 1. Representations and Warranties. The Company represents and
warrants to each of you, and to each Underwriter named in a Terms Agreement as
of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the
Representation Date, complied, and will comply, in all material
respects with the requirements of the 1933 Act and the rules and
regulations thereunder (the "1933 Act Regulations"); the Registration
Statement, at the time the Registration Statement became effective and
as of the Representation Date, did not, and will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the time the Registration Statement
became effective and as of the Representation Date, did not, and will
not, contain 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 or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement or
Prospectus.
(b) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied, and will comply, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or become
effective, and when filed under the 1934 Act, did not, and will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
(c) The accountants who certified the financial statements
included or incorporated in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(d) The consolidated financial statements included or
incorporated in the Registration Statement and Prospectus present
fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of their
operations and the changes in their financial position for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles consistently applied
during the period, except as stated therein.
(e) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein or
contemplated thereby, there has been (A) no material adverse change in
the condition, financial or otherwise, of the Company and its
subsidiaries considered taken as a whole and (B) no litigation or
governmental proceeding instituted or, to the knowledge of the Company,
threatened against the Company or any subsidiary which would reasonably
be expected to have any material adverse effect on the financial
condition of the Company and its subsidiaries taken as a whole.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with the corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent
that the failure to be so qualified or licensed or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(g) Each subsidiary of the Company listed in Exhibit 21 to the
most recent Annual Report on Form 10-K on file with the Commission (a
"Significant Subsidiary") is a duly incorporated and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus. Each Significant Subsidiary is duly qualified or licensed
to do business as a foreign
2
<PAGE> 3
corporation in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification or licensing, except to the extent that the failure to be
so qualified or licensed or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole. The issued and outstanding common stock of each of the
Significant Subsidiaries has been duly authorized and validly issued
and is fully paid and non-assessable and is owned by the Company free
and clear of any mortgages, liens or similar encumbrances.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its certificate of incorporation or by-laws, and the
Company is not in default in the performance or observance of any
obligation in any indenture, mortgage, evidence of indebtedness or
similar agreement or instrument to which it is a party or by which it
or any of its properties may be bound which default would have a
material adverse effect on the Company and its subsidiaries taken as a
whole. The execution and delivery of this Agreement and the Terms
Agreement and the consummation of the transactions contemplated herein
and therein and the incurrence of the obligations herein and therein
set forth, have been or will be duly authorized by all necessary
corporate action and do not and will not, conflict with, or constitute
or result in a breach of or default under, the certificate of
incorporation or by-laws of the Company or any law, order, rule,
regulation or court decree or, except for any such conflict, breach or
default which would not have a material adverse effect on the Company
and its subsidiaries taken as a whole, any bond, debenture, note or
other evidence of indebtedness or any material contract, lease,
license, indenture, mortgage, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties may be bound.
(i) No consent, approval, authorization, order or
qualification or registration of or with any court or governmental
agency or body is required for the consummation of the transactions
contemplated in this Agreement, except for the registration of the
offer and sale of the Securities under the 1933 Act and such consents,
approvals, authorizations, orders, qualifications or registrations as
may be required under the Blue Sky or securities laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters.
(j) The Company and each Significant Subsidiary possess such
valid franchises, certificates of convenience and necessity, easements,
rights-of-way, operating rights, licenses, permits, consents,
authorizations and orders of governmental political subdivisions or
regulatory authorities as, in the opinion of the Company, are
materially necessary to carry on the respective businesses of each as
described in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The authorized capital stock of the Company conforms as to
legal matters to the descriptions thereof contained in the Prospectus.
(m) The Securities have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement and the
applicable Terms Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Securities will not be subject
to any preemptive or similar rights.
(n) The shares of the Company's Common Stock, par value $.10
per share (the "Common Stock"), into which the Securities may be
converted, if any (the "Conversion Shares"), have been duly authorized
and reserved for issuance upon conversion of the Securities and, when
issued and delivered upon any such conversion, will be validly issued,
fully paid and non-assessable, and the issuance of such Conversion
Shares will not be subject to any preemptive or similar rights.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase, and the obligation of the Company to sell, Securities
pursuant to any Terms 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 set forth.
3
<PAGE> 4
Payment of the purchase price for, and delivery of, any Firm Securities
to be purchased by the Underwriters shall be made at such time and place and on
such date as specified in the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 9) (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company in
Federal or other funds immediately available in New York City or by such other
means as may be specified in the Terms Agreement against delivery to you for the
respective accounts of the Underwriters of the Firm Securities to be purchased
by them.
If so specified in the applicable Terms Agreement, the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to the
number of Additional Securities set forth in the applicable Terms Agreement at
the purchase price set forth in the applicable Terms Agreement plus accrued
dividends, if any. Additional Securities may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Additional
Securities (subject to such adjustments to eliminate fractional shares as you
may determine) that bears the same proportion to the total number of Additional
Securities to be purchased as the number of Firm Securities set forth opposite
its name in the applicable Terms Agreement bears to the total number of Firm
Securities.
Payment of the purchase price for, and delivery of, any Additional
Securities to be purchased by the Underwriters shall be made at such time (which
may be the same as the Closing Time but shall in no event be earlier than the
Closing Time nor later than ten business days after the giving of the notice
hereinafter referred to) and place as shall be designated in a written notice
from you to the Company of your determination, on behalf of the Underwriters, to
purchase a number, specified in such notice, of Additional Securities, or at
such other time, in any event not later than 30 days after the Closing Time, as
shall be designated in writing by the Underwriters. The time and date of such
payment are hereinafter referred to as the "Option Closing Time". The notice of
the determination to exercise the option to purchase Additional Securities and
of the Option Closing Time may be given at any time within 30 days after the
date of the Terms Agreement.
Certificates evidencing the Firm Securities and Additional Securities
shall be in definitive form and registered in such names in such denominations
as you shall request in writing not less than two full business days prior to
the Closing Time or the Option Closing Time, as the case may be. The
certificates evidencing the Firm Securities and Additional Securities shall be
delivered to you at the Closing Time or the Option Closing Time, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid, against payment of the purchase price therefor.
SECTION 3. Covenants of the Company. The Company covenants with each of
you, and with each Underwriter participating in the applicable offering of
Securities, as follows with respect to such offering of Securities:
(a) As soon as practicable, following the execution of the
applicable Terms Agreement, the Company will prepare a Prospectus
Supplement setting forth the number, class and designation of
Securities covered thereby and their terms, the names of the
Underwriters participating in the offering and the number of Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling
concession and reallowance, if any, any Additional Securities
information and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The
Company will transmit copies of the Prospectus Supplement to the
Commission in compliance with Rule 424 of the 1933 Act Regulations and
will furnish to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as you shall reasonably
request for the purposes contemplated by the 1933 Act or the 1933 Act
Regulations.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of such Securities any
event shall occur or condition exist as a result of which it is
necessary to further amend or supplement the Prospectus in order that
the Prospectus will not include an
4
<PAGE> 5
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if
it shall be necessary at any time 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
will, as soon as practicable, prepare and file (if required) with the
Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(c) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 18
months after the date of the Prospectus Supplement relating to such
Securities, earnings statements of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the 1933
Act and the 1933 Act Regulations (including at the option of the
Company Rule 158).
(d) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of
such Securities, will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed in a reasonable time
for review by the Underwriters in advance of filing.
(e) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered by you in connection with
sales of Securities, will notify each of you, as soon as practicable,
and confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any 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 and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of the threat or initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you, as soon as
practicable, as many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3 under the 1933 Act) as you may reasonably request and will also
deliver to you a conformed copy of the Registration Statement and each
amendment thereto for each of the Underwriters.
(g) The Company will cooperate with you to qualify such
Securities for offering and sale under the applicable Blue Sky or
securities laws of such states and other jurisdictions of the United
States as you may designate, and will cooperate in maintaining such
qualifications in effect for as long as may be required for the
distribution of such Securities except that the Company shall not be
obligated to file any general consent to service or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified. In each jurisdiction in which such
Securities of the sale thereof shall have been qualified as above
provided, the Company will cooperate with you to make and file such
statements and reports in each year as may be required by the laws of
such jurisdiction. The Company will cooperate in the determination of
the eligibility for investment of the Securities under the laws of such
jurisdictions as you reasonably request.
(h) If so specified in the applicable Terms Agreement, the
Company will not, without your prior written consent, offer, sell,
contract to sell or otherwise dispose of any securities of the Company
designated in such Terms Agreement during the Lock-up Period specified
in the applicable Terms Agreement, other than (i) the Securities to be
sold hereunder; (ii) the Common Stock, if any, issuable upon conversion
of the Securities or conversion of any other existing securities
convertible into Common Stock
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or upon exercise of any existing options to purchase Common Stock; and
(iii) options or shares of Common Stock sold or issued pursuant to any
employee benefit plan or arrangement of the Company or any of its
subsidiaries existing on the date of the applicable Terms Agreement.
SECTION 4. Conditions of Your Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company herein contained as of the date of the Terms
Agreement and as of the applicable Closing Time, to the performance by the
Company in all material respects of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and, in the case of an offering hereunder
of preferred stock, (ii) the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the date of the applicable Terms Agreement shall not have
been lowered since the execution of such Terms Agreement.
(b) At the applicable Closing Time you shall have received
signed copies of:
(1) The opinion, dated as of the applicable Closing
Time, of special counsel for the Company specified in the
Prospectus, in form and substance satisfactory to you, to the
effect that:
(i) The Company is duly incorporated and
validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has the corporate power and
corporate authority to own, lease and operate its
properties and conduct its business as described in
the Prospectus.
(iii) This Agreement and the applicable
Terms Agreement have been duly authorized, executed
and delivered by the Company.
(iv) The Securities covered by the
applicable Terms Agreement have been duly authorized
and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of
such Securities will not be subject to any preemptive
or similar rights.
(v) The Conversion Shares, if any, have been
duly authorized, and, when issued and delivered upon
conversion of the Securities covered by the
applicable Terms Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of
such Conversion Shares will not be subject to any
preemptive or similar rights.
(vi) The Registration Statement is effective
under the 1933 Act and, to the best of their
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) No regulatory consent, authorization,
approval or filing is required by the laws of the
United States or of any state thereof for the
issuance, sale and delivery of the Securities covered
by the applicable Terms Agreement by the Company to
the Underwriters except such as have been obtained or
made under the 1933 Act, the 1934 Act and other
applicable legislation specified in such opinion and
such as may be required under state securities or
Blue Sky laws in connection with the purchase and
distribution of the Securities by you.
(viii) The execution and delivery of this
Agreement and any applicable Terms Agreement, the
issuance of Securities covered by the applicable
Terms
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<PAGE> 7
Agreement, the incurrence of the obligations set
forth herein and therein, and the consummation of the
transactions herein and therein contemplated do not
and will not conflict with or constitute or result in
a breach of, or default under, the certificate of
incorporation or by-laws, each as in effect at the
applicable Closing Time, of the Company.
(ix) (A) Such counsel is of the opinion that
the Registration Statement and the Prospectus and any
supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations; and (B) nothing which has
come to the attention of such counsel has caused them
to believe that the Registration Statement at the
time of the applicable Terms Agreement (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any belief) contained any
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading or that the Prospectus, as amended or
supplemented, if applicable, contains any untrue
statement of a material fact or omits to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
With respect to subparagraph (ix) above, such counsel may
state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
In rendering the foregoing opinion or opinions, such counsel
shall opine only as to the Federal laws of the United States, the laws
of the State of New York and the General Corporation Law of the State
of Delaware. Such counsel may also state that they have relied as to
certain matters on information obtained from public officials, officers
of the Company and other sources believed by them to be responsible. In
rendering the foregoing opinion, special counsel for the Company shall
have received and may rely upon such certificates and other documents
and information as they may reasonably request to pass upon such
matters.
(2) The opinion or opinions, dated as of the
applicable Closing Time, of the General Counsel or Associate
General Counsel of the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company and each Significant
Subsidiary is duly qualified or licensed to do
business as a foreign corporation in good standing in
each jurisdiction in which the conduct of its
business or its ownership or leasing of property
requires such qualification or licensing, except to
the extent that the failure to be so qualified or
licensed or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole.
(ii) 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 with full corporate
power and authority to own, lease and operate its
properties and conduct its business as described in
the Registration Statement.
(iii) The issued and outstanding common
stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and
non-assessable; and the Company owns the issued and
outstanding common stock of each Significant
Subsidiary free and clear of any mortgages, liens or
similar encumbrances.
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<PAGE> 8
(iv) The authorized capital stock of the
Company conforms as to legal matters to the
description thereof contained in the Prospectus.
(v) To the knowledge of such counsel, the
execution and delivery of this Agreement and any
applicable Terms Agreement, the issuance of the
Securities, the incurrence of the obligations set
forth herein and therein and the consummation of the
transactions herein and therein contemplated do not
and will not conflict with or constitute or result in
a breach of, or default under, (a) any judgment,
order or decree of any domestic government,
governmental instrumentality or court having
jurisdiction over the Company, any Significant
Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or
(b) any provision of any indenture, mortgage or
similar agreement or instrument known to such counsel
to which the Company or any Significant Subsidiary is
a party or by which they or any material part of
their property is bound except for such conflicts,
breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries
taken as a whole.
(vi) No regulatory consent, authorization,
approval or filing is required by the laws of the
State of Texas or, to the best of his knowledge, any
other state for the issuance, sale and delivery of
the Securities covered by the applicable Terms
Agreement by the Company to the Underwriters except
such as have been obtained or made under the 1933
Act, the 1934 Act and other applicable legislation
specified in such opinion and such as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities
by you.
(vii) Such counsel does not know of any
litigation or any governmental proceeding instituted
or threatened against the Company or any Significant
Subsidiary which would be required to be disclosed in
the Prospectus and which is not disclosed.
(viii) (A) Such counsel is of the opinion
that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations and the documents
incorporated by reference therein complied as to form
in all material respects when filed with the 1934 Act
and the 1934 Act Regulations; and (B) nothing which
has come to the attention of such counsel in the
course of his representation of the Company has
caused him to believe that any part of the
Registration Statement at the time of the applicable
Terms Agreement (except for financial statements or
other financial or statistical data contained therein
as to which such counsel need not express any belief)
contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading and the Prospectus, as amended
or supplemented, if applicable, does not contain any
untrue statement of a material fact or omit to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading
With respect to subparagraph (viii) above, such counsel may
state that he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus except for those made under the
captions "Description of Capital Stock, Rights Agreement and Restated
Certificate of Incorporation" and "Description of Offered Securities"
(or similar caption) insofar as they relate to provisions of documents
therein described.
In rendering the foregoing opinion or opinions, such counsel
shall opine only as to matters governed by the Federal laws of the
United States, the laws of the State of Texas and the General
Corporation Law of the State of Delaware. Such counsel may also state
that he has relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by
him to be responsible.
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<PAGE> 9
(3) The opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters
specified in the Prospectus, with respect to the validity of
the Securities, the Registration Statement, the Prospectus and
other related matters as you reasonably may request. In
rendering the foregoing opinion, such counsel may rely, to the
extent recited therein, as to matters involving the laws of
any jurisdiction other than the States of Delaware and New
York, upon opinions of local counsel. Such counsel may also
state that they have relied as to certain matters on
information obtained from public officials, officers of the
Company and other sources believed by them to be responsible.
(c) At the applicable Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries taken as a whole, and you shall have received a
certificate of the Chairman of the Board, President or a Vice President
of the Company, dated as of such Closing Time, that to the best of his
knowledge after reasonable investigation, there has been no such
material adverse change or development involving such a prospective
material adverse change, the representations and warranties of the
Company contained in Section 1 are true and correct in all material
respects with the same force and effect as though expressly made at and
as of such Closing Time, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened by the Commission.
(d) At the applicable Closing Time, you shall have received
from KPMG Peat Marwick LLP a letter, dated such date, in form and
substance satisfactory to you, containing statements and information of
the type ordinarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Company and its subsidiaries
contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities 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 in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to you
and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the applicable
Terms Agreement may be terminated by you by notice to the Company at any time at
or prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as otherwise provided in
Sections 5 and 6.
The obligations of the Underwriters to purchase Additional Securities
pursuant to any Terms Agreement are subject to the delivery to you at the Option
Closing Time of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Securities and other matters related to the issuance of the
Additional Securities.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Securities
under Blue Sky or securities laws in accordance with the provisions of Section 3
(g), including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (v) 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, (vi) the fees of rating agencies, (vii) all fees and
disbursements of any
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<PAGE> 10
transfer and paying agent and (viii) the fees and expenses, if any, incurred in
connection with the listing of the Securities on the New York Stock Exchange.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 8 (i), the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their reasonable
out-of-pocket expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with such Terms Agreement and the proposed
offering, purchase and sale of the related Securities. Except as otherwise
provided in this Section 5, the Company shall not be required to pay your
expenses or those of other Underwriters.
SECTION 6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
The foregoing indemnity with respect to any untrue statement
contained in or omission from any preliminary prospectuses shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, liability,
claim or damages purchased any of the Securities which are the subject
thereof if the untrue statement contained in or omission from any
preliminary prospectuses or any preliminary prospectus supplement was
corrected in a Prospectus (or any amendment or supplement thereto) but
such person did not receive a copy of such Prospectus (or any amendment
or supplement thereto) at or prior to confirmation of the sale of such
Securities to such person in any case where such delivery is required
by the 1933 Act, unless such failure to receive a copy of such
amendment or supplement resulted from non-compliance by the Company
with Sections 3(a) or (b) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 6(a) or 6(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of
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any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified
pursuant to Section 6(a), and by the Company, in the case of parties
indemnified pursuant to Section 6(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 6(d)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 6(d)(i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate Public Offering Price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective number of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 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 that does not take account of the equitable considerations
referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled
to contribution from any person who was not guilty of such
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<PAGE> 12
fraudulent misrepresentation. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Securities.
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
SECTION 8. Termination. This Agreement may be terminated for any reason
at any time by either the Company or a majority of you upon the giving of 30
days' written notice of such termination to the other parties hereto. Such of
you as may be named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries taken as a whole, or in the
earnings, business or operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any new outbreak of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in the reasonable judgment of such of you as are named in such Terms
Agreement, impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading generally on either the American
Stock Exchange or the New York Stock Exchange has 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 such exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of any
such termination, the provisions of Sections 5, 6, 7 and 12 shall remain in
effect.
SECTION 9. Default. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time or Option
Closing Time, as the case may be, to purchase the Securities which it or they
are obligated to purchase at such time hereunder and under the applicable Terms
Agreement (the "Defaulted Securities"') , then such of you as are named therein
shall have the right, within 36 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 36 hours you shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, and if the Company shall not have completed
arrangements for the purchase of all, but not less than all, of the Defaulted
Securities by other underwriters satisfactory to such of you as are named in the
applicable Terms Agreement, then:
(a) if the aggregate number of Defaulted Securities does not
exceed 10% of the aggregate number of Firm Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters shall
be obligated to purchase the full amount thereof in the proportions
that the number of Firm Securities set forth opposite their respective
names in the applicable Terms Agreement bears to the aggregate number
of Firm Securities set forth opposite the names of all such
non-defaulting Underwriters, or
(b) if the aggregate number of Defaulted Securities exceeds
10% of the aggregate number of Firm Securities to be purchased pursuant
to such Terms Agreement, the applicable Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
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No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section which does not result in a termination of the applicable
Terms Agreement, either you or the Company shall have the right to postpone the
applicable Closing Time or Option Closing Time, as the case may be, for a period
of not exceeding seven days in order that any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you, at the address indicated in the
applicable Terms Agreement; and notices to the Company shall be directed to it
at 17001 Northchase Dr., Houston, Texas 77060, attention of Vice President and
Treasurer, or to such other address or person as may be designated in any such
notice.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and such 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 any
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
13
<PAGE> 14
EXHIBIT A
ANADARKO PETROLEUM CORPORATION
Equity Securities
TERMS AGREEMENT
Dated:
--------------------
To: Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77060
Attention: Vice President and Treasurer
Re: Underwriting Agreement (Standard Provisions) Equity Securities 1998
Title of Securities:
Number of Firm Securities to be issued:
Maximum number of Additional Securities to be issued:
Current ratings:
Dividend rate:
Redemption provisions:
Conversion provisions:
Other terms:
Public offering price:
Purchase price:
Specified funds for payment of purchase price:
Closing date and location:
Lock-up Period:
Additional co-managers, if any:
Subject to the terms and provisions of the above referenced Underwriting
Agreement, which is incorporated herein in its entirety and made a part hereof,
the Company agrees to sell and each Underwriter severally agrees to purchase the
number of Firm Securities set forth opposite its name.
<TABLE>
<CAPTION>
Name Number of Firm Shares
---- ---------------------
<S> <C>
</TABLE>
We represent that as representatives of the several Underwriters we are
entitled to execute this Terms Agreement on behalf of the several Underwriters
and otherwise to act as representatives on their behalf. The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given by
us as representatives of the several Underwriters.
14
<PAGE> 15
By
--------------------------------------
By
--------------------------------------
By
--------------------------------------
Acting on behalf of themselves and the
other named Underwriters.
Address for Notices:
Accepted:
ANADARKO PETROLEUM CORPORATION
By:
15
<PAGE> 1
EXHIBIT 5
[DAVIS POLK & WARDWELL LETTERHEAD]
March 18, 1998
Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77060
Dear Sirs:
We have acted as special counsel to Anadarko Petroleum Corporation (the
"Company") in connection with the Company's Registration Statement on Form S-3
being filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, with respect to the contemplated issuance by the
Company from time to time of up to $400,000,000 aggregate initial offering
price of Debt Securities, Preferred Stock and/or Common Stock (collectively,
the "Securities"). The Debt Securities are to be issued pursuant to a Senior
Indenture between the Company and Harris Trust and Savings Bank, as trustee,
the form of which has been filed as an Exhibit to the Registration Statement
(the "Senior Indenture") or a Subordinated Indenture between the Company and
First Chicago NBD, as trustee, the form of which has been filed as an Exhibit
to the Registration Statement (the "Subordinated Indenture").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary for the purpose of
rendering this opinion.
<PAGE> 2
Anadarko Petroleum Corporation -2- March 17, 1998
On the basis of the foregoing, we are of the opinion that:
(1) when the Senior Indenture or the Subordinated Indenture has
been duly authorized, executed and delivered and when the specific
terms of a particular Debt Security have been duly authorized and
established in accordance with the Senior Indenture or the
Subordinated Indenture, as the case may be, and such Debt Security has
been duly authorized and executed, authenticated, issued and delivered
in accordance with the Senior Indenture or the Subordinated Indenture,
as the case may be, against payment therefor in accordance with the
applicable underwriting or other agreement, such Debt Security will
constitute the valid and binding obligation of the Company; and
(2) the shares of Common Stock, par value $0.10 per share, of the
Company (the "Common Stock"), and the shares of Preferred Stock, par
value $1.00 per share, of the Company (the "Preferred Stock"), when
such shares of Common Stock or Preferred Stock, as the case may be,
have been duly authorized, issued and delivered against payment
therefor in accordance with the applicable underwriting or other
agreement, will be validly issued, fully paid and non-assessable.
In connection with our opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any such Security, the Registration
Statement has been declared effective, that the authorization of the Securities
will be applicable to such Security, will not have been modified or rescinded
and there will not have occurred any change in law affecting the validity or
enforceability of such Security. We have also assumed that none of the terms of
any Security to be established subsequent to the date hereof nor the issuance
and delivery of such Security, nor the compliance by the Company with the terms
of such Security, will violate any applicable law or will result in a violation
of any provision of any instrument or agreement then binding upon the Company,
or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
<PAGE> 3
Anadarko Petroleum Company -3- March 17, 1998
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement of the Company relating to the Securities and to the
reference to our name in the Prospectus contained therein.
Very truly yours,
/s/ Davis Polk & Wardwell
<PAGE> 1
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Anadarko Petroleum Corporation:
We consent to the use of our reports incorporated by reference in the
Registration Statement on Form S-3, dated March 18, 1998, and to the reference
to our firm under the heading "Experts" in the Registration Statement.
KPMG Peat Marwick LLP
Houston, Texas
March 18, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or
Director of ANADARKO PETROLEUM CORPORATION (the "Company"), a Delaware
corporation, does hereby constitute and appoint ROBERT J. ALLISON, JR., SUZANNE
SUTER and MICHAEL E. ROSE and each of them his true and lawful attorney and
agent to do any and all acts and things and execute any and all instruments
which, with the advice of Counsel, said attorney and agent may deem necessary or
advisable to enable the company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the filing under said Act of the Form S-3
Registration Statement registering equity and debt securities, including
specifically, but without limitation thereof, to sign his name as an Officer
and/or Director of the Company, to the Form S-3 Registration Statement filed
with the Securities and Exchange Commission, and to any instrument or document
filed as a part of, or in connection with, said S-3 Registration Statement or
amendment thereto; and the undersigned does hereby ratify and confirm all that
said attorney and agent shall do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents this
18th day of March, 1998.
Robert J. Allison, Jr. James L. Bryan
------------------------- -------------------------
Robert J. Allison, Jr. James L. Bryan
Conrad P. Albert John R. Butler, Jr.
------------------------- -------------------------
Conrad P. Albert John R. Butler, Jr.
Larry Barcus John R. Gordon
------------------------- -------------------------
Larry Barcus John R. Gordon
Ronald Brown John N. Seitz
------------------------- -------------------------
Ronald Brown John N. Seitz
Michael E. Rose J. R. Larson
------------------------- -------------------------
Michael E. Rose J. R. Larson
Suzanne Suter
-------------------------
Suzanne Suter
<PAGE> 1
================================================================================
EXHIBIT 25(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a trustee Pursuant to Section 305(b) ____
HARRIS TRUST AND SAVINGS BANK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
Illinois 36-1194448
(JURISDICTION OF INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NUMBER)
111 West Monroe Street
Chicago, Illinois 60603
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
Mark F. McLaughlin
Harris Trust and Savings Bank
111 West Monroe Street, Chicago, Illinois
(312) 461-2531
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------------------
ANADARKO PETROLEUM CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
Delaware 76-0146568
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
1701 Northchase Drive
Houston, Texas 77060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
--------------------------------------
___% SENIOR UNSECURED NOTES DUE 20___
(TITLE OF INDENTURE SECURITIES)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
If the Obligor is an affiliate of the Trustee, describe each such
affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence
business and to exercise corporate trust powers was filed in
connection with the Registration Statement of Louisville Gas and
Electric Company, File No. 2-44295, and is incorporated herein by
reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation,
File No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 3 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B on page 4 of this statement)
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 12th day of March, 1998.
HARRIS TRUST AND SAVINGS BANK
By: /s/ THERESE GABALLAH
--------------------------------------
Therese Gaballah
Vice President
2
<PAGE> 3
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby
consents that reports of examinations of said trustee by Federal and
State authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ THERESE GABALLAH
--------------------------------------
Therese Gaballah
Vice President
3
<PAGE> 4
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of December 31, 1997, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[HARRIS BANK LOGO]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on December 31, 1997, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin ............ $ 1,252,381
Interest bearing balances ...................................... $ 598,062
Securities:
a. Held-to-maturity securities .............................................. $ 0
b. Available-for-sale securities ............................................ $ 3,879,399
Federal funds sold and securities purchased under agreements to resell ....... $ 71,725
Loans and lease financing receivables:
Loans and leases, net of unearned income ....................... $ 8,813,821
LESS: Allowance for loan and lease losses ..................... $ 99,678
-----------
Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b) ................................... $ 8,714,143
Assets held in trading accounts .............................................. $ 136,538
Premises and fixed assets (including capitalized leases) ..................... $ 221,312
Other real estate owned ...................................................... $ 642
Investments in unconsolidated subsidiaries and associated companies .......... $ 103
Customer's liability to this bank on acceptances outstanding ................. $ 46,480
Intangible assets ............................................................ $ 279,897
Other assets ................................................................. $ 653,101
-----------
TOTAL ASSETS ................................................................. $15,853,783
===========
</TABLE>
4
Wholly owned subsidiary of Harris Bankcorp, Inc.
<PAGE> 5
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices ..................................................................... $ 8,926,635
Non-interest bearing ........................................................... $ 3,692,891
Interest bearing ............................................................... $ 5,233,744
In foreign offices, Edge and Agreement subsidiaries, and IBF's .......................... $ 1,763,669
Non-interest bearing ........................................................... $ 22,211
Interest bearing ............................................................... $ 1,741,458
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased.& securities sold under agreements to repurchase ................ $ 2,693,600
Trading Liabilities .......................................................................... 82,861
Other borrowed money:
a. With remaining maturity of one year or less .............................................. $ 601,799
b. With remaining maturity of more than one year ............................................ $ 0
Bank's liability on acceptances executed and outstanding ..................................... $ 46,480
Subordinated notes and debentures ............................................................ $ 325,000
Other liabilities ............................................................................ $ 134,309
---------------------------
TOTAL LIABILITIES ............................................................................ $14,574,353
===========================
EQUITY CAPITAL
Common stock ................................................................................. $ 100,000
Surplus ...................................................................................... $ 601,026
a. Undivided profits and capital reserves ................................................... $ 573,416
b. Net unrealized holding gains (losses) on available-for-sale securities ................... $ 4,988
---------------------------
TOTAL EQUITY CAPITAL ......................................................................... $ 1,279,430
===========================
Total liabilities, limited-life preferred stock, and equity capital .......................... $15,853,783
===========================
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
1/30/98
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY
Directors.
5
Wholly owned subsidiary of Harris Bankcorp, Inc.
<PAGE> 1
EXHIBIT 25(b)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
ANADARKO PETROLEUM CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 76-014658
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
17001 NORTHCHASE DRIVE
HOUSTON, TEXAS 77060-2141
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 12th day of March,
1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ STEVEN M. WAGNER
---------------------------------
STEVEN M. WAGNER
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2,
1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 12, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Anadarko Petroleum
Corporation and The First National Bank of Chicago, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ STEVEN M. WAGNER
-------------------------------------
STEVEN M. WAGNER
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
Dollar Amounts in --------
Thousands RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) ........... 0081 4,267,336 1.a.
b. Interest-bearing balances(2) .................................... 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ....... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) .... 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell ............................................................. 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) .............................................................. RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses ....................... RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve ........................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) ............................ 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) ................................ 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) ........... 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) ....................... 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ..................................... 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding ....... 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) ............................. 2143 268,501 10.
11. Other assets (from Schedule RC-F) .................................. 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) ........................... 2170 58,483,415 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) ....................................... RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) ........................................ RCON 6631 9,197,227 13.a.1
(2) Interest-bearing .............................................. RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) ................................ RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing ........................................... RCFN 6631 332,801 13.b.1
(2) Interest-bearing .............................................. RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: ....................................................... RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury .......................... RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D) ........................... RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less .................... RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years ... A547 576,492 16.b
c. With a remaining maturity of more than three years ............... A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .............. RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) ................................ RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) ............................... RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) ....................... RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................ RCFD 3838 0 23
24. Common stock ......................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) ............. RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves ............................ RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................ RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments .................. RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) .................... RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) ........ RCFD 3300 58,483,415 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 ......................................RCFD 6724 .............N/A M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
