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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of earliest event reported): March 16, 1995
UNION TEXAS PETROLEUM HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-9019 76-0040040
(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
1330 Post Oak Boulevard, Houston, Texas 77056
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (713) 623-6544
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Item 5. Other Events.
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Union Texas Petroleum Holdings, Inc. filed with the Securities and
Exchange Commission ("Commission") on March 15, 1994 a Registration Statement
(33-52683), which became effective on May 27, 1994, for $200,000,000 aggregate
principal amount of debt securities registered for offering under the
Securities Act of 1933 on a continuous or delayed basis pursuant to the
provisions of Rule 415. A form of underwriting agreement and calculation of
ratio of earnings to fixed charges are filed as exhibits herewith and
incorporated by reference hereto and to such Registration Statement.
The information set forth in the press release of the Registrant dated
March 16, 1995, regarding the acquisition of a 15% working interest in five and
a half blocks in the Porcupine Basin situated offshore Ireland, is incorporated
herein by reference.
Item 7. Financial Statements and Exhibits.
---------------------------------
(c) Exhibits:
Exhibit
Number Description
- ------ -----------
1.1 Form of Underwriting Agreement.
12.1 Calculation of Ratio of Earnings to Fixed Charges.
99.1 Press release dated March 16, 1995.
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Signature
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNION TEXAS PETROLEUM
HOLDINGS, INC.
By: /s/ NEWTON W. WILSON, III
--------------------------
NEWTON W. WILSON, III
General Counsel,
Vice President-Administration
and Secretary
Date: March 16, 1995
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INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
1.1 Form of Underwriting Agreement.
12.1 Calculation of Ratio of Earnings to Fixed Charges.
99.1 Press release dated March 16, 1995.
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UNION TEXAS PETROLEUM HOLDINGS, INC.
[DEBT SECURITIES]
----------------------------
Underwriting Agreement
[DATE]
[UNDERWRITER]
Dear Sirs:
Union Texas Petroleum Holdings, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to [Underwriters] (the "Underwriters") an aggregate of
$100,000,000 principal amount of the [Debt Securities] of the Company (the
"Notes"). The Company's obligations to pay principal, premium, if any, and
interest with respect to the Notes will be unconditionally guaranteed (the
"Guarantees") on a joint and several basis by each of the following
subsidiaries of the Company (collectively, the "Guarantors"): (i) Union Texas
East Kalimantan Limited, a Bahamian corporation ("UTEK"); (ii) Union Texas
Petroleum Energy Corporation, a Delaware corporation; (iii) Union Texas
International Corporation, a Delaware corporation; (iv) Union Texas Products
Corporation, a Delaware corporation; and (v) Unistar, Inc., a Delaware
corporation.
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement in respect of the Notes and the
Guarantees has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, have
been declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement,
including all exhibits thereto (other than the Statement of Eligibility
and Qualification on Form T-1 of the Trustee (as defined below)) and
including
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the documents incorporated by reference in the prospectus contained in
the registration statement at the time such part of the registration
statement became effective, each as amended at the time such part of
the registration statement became effective, being hereinafter called
the "Registration Statement"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus being deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus being deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement being deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
published rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by you expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
published rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act and the published
rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by you expressly for use therein;
(e) None of the Company or any of its subsidiaries or, to the
best of the Company's knowledge, Unimar Company, a Texas general
partnership ("Unimar"), has sustained since the
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date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, which loss or interference is material
to the Company and its subsidiaries taken as a whole; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock (other than (i) any shares of capital stock of the
Company sold upon exercise of a subscription, option or warrant or the
conversion of a security outstanding on the date of this Agreement,
(ii) any shares of such capital stock, or other securities convertible
or exercisable or exchangeable for such shares, in either case issued
pursuant to any employee stock option or benefit plan of the Company
existing on the date of this Agreement and (iii) any stock repurchases
pursuant to the Company's publicly announced stock repurchase program)
or any increase of more than $25,000,000 in the consolidated short-term
or long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(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 power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each subsidiary of the Company
identified in Annex II hereto (collectively, the "Material
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation; Unimar has been duly formed and is validly existing as a
partnership under the laws of the State of Texas; and the Company does
not have any subsidiary that is a "significant subsidiary" (within the
meaning of the published rules and regulations of the Commission under
the Act) that is not identified in Annex II hereto;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each Material Subsidiary of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable,
and all of such shares of capital stock and 50% of the equity
interests in Unimar (except for directors' qualifying shares and
shares held by third parties solely to satisfy local law requirements
and except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(h) The Notes have been duly authorized by the Company and,
when issued and delivered pursuant to this Agreement, will have been
duly executed, authenticated, issued and delivered by the Company and
will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the indenture dated as of
[__________], 1995 (the "Indenture") among the Company, the Guarantors
and The First National Bank of Chicago, as Trustee (the "Trustee"),
under which they are to be issued, which will be substantially in the
form filed as an exhibit to the Registration Statement; the Guarantees
have been duly authorized by each of the Guarantors and, upon the due
authentication, execution, issuance and delivery of the Notes, will
have been duly executed, issued and delivered by each Guarantor and
will constitute valid and legally binding obligations of each Guarantor
entitled to the benefits provided by the Indenture; the Indenture has
been duly authorized by the Company and each Guarantor and duly
qualified under the Trust Indenture Act and, when executed and
delivered by the Company, each Guarantor and the Trustee, will
constitute a valid and legally binding instrument of the Company and
each Guarantor, enforceable against the Company and each Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of
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general applicability relating to or affecting creditors' rights and to
general equity principles; and the Notes, the Guarantees and the
Indenture will conform to the descriptions thereof in the Prospectus;
(i) The issue and sale of the Notes, the issue of the
Guarantees and the compliance by the Company and the Guarantors with
all of the provisions of the Notes, the Guarantees, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
or, to the best of the Company's knowledge, Unimar is a party or by
which the Company or any of its subsidiaries or Unimar is bound or to
which any of the property or assets of the Company or any of its
subsidiaries or Unimar is subject, or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or Unimar or any
of their properties (excluding conflicts, breaches, violations and
defaults that, individually or in the aggregate, will not have any
material adverse effect on the general affairs, management, financial
position, stockholders' equity, results of operations or prospects of
the Company and its subsidiaries taken as a whole), nor will any such
action result in any violation of the provisions of the Restated
Certificate of Incorporation or By-laws of the Company or the charter
or by-laws of any Guarantor; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the
Company and the Guarantors of the transactions contemplated by this
Agreement or the Indenture, except the registration under the Act of
the Notes and the Guarantees, the qualification under the Trust
Indenture Act of the Indenture and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Notes and the Guarantees by the Underwriters;
(j) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries or, to the best of the Company's knowledge, Unimar
is a party or of which any property of the Company or any of its
subsidiaries or Unimar is the subject which, if determined adversely to
the Company or any of its subsidiaries or Unimar, would individually or
in the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(k) Price Waterhouse, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(l) Neither the Company nor any of the Guarantors is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), and the published
rules and regulations of the Commission thereunder, and the offer and
sale of the Notes and the Guarantees will not subject the Company or
any of the Guarantors to registration under, or result in a violation
of, the Investment Company Act.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of [ ]% of the principal amount thereof, plus accrued
interest from [__________], 1995 to the Time of Delivery (as defined in Section
4 hereof), the principal amount of the Notes set forth opposite the name of
such Underwriter in Schedule 1 hereto.
3. Upon the authorization by you of the release of the Notes, the
several Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
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4. The Notes to be purchased by each Underwriter hereunder, in
definitive form and in such denominations and registered in such names as
Goldman, Sachs & Co., on behalf of the Underwriters, may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to you against payment by you by certified or official
bank check or checks, payable to the order of the Company, in New York Clearing
House funds, all at the office of Goldman, Sachs & Co., 85 Broad Street, New
York, New York. The time and date of such delivery and payment shall be 9:30
a.m., New York time, on [__________], 1995 or such other time and date as you
and the Company may agree upon in writing, such time and date being herein
called the "Time of Delivery." Such certificates will be made available for
checking and packaging at least twenty-four hours prior to the Time of Delivery
at such office of Goldman, Sachs & Co.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be reasonably disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish you copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Notes; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Notes or the Guarantees for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes and the Guarantees for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) To furnish you with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Notes and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to you and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case you are required to
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deliver a prospectus in connection with sales of any of the Notes at
any time nine months or more after the time of issue of the Prospectus,
upon your request but at your expense, to prepare and deliver to you as
many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the termination of
trading restrictions on the Notes as notified to the Company by you,
and (ii) the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of debt securities of the Company which mature more
than one year after the Time of Delivery and which are substantially
similar to the Notes, except (x) with your prior written consent, (y)
as described in the Prospectus or (z) pursuant to borrowings under the
Company's credit facilities or lines of credit established by the
Company prior to the date hereof;
(f) To furnish to the holders of the Notes as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail; and
(g) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission).
6. The Company covenants and agrees with you that it will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Notes and the Guarantees under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to you and to dealers;
(ii) the cost of printing or producing this Agreement, the Indenture, the Blue
Sky Memorandum and any other documents in connection with the offering,
purchase, sale and delivery of the Notes and the Guarantees; (iii) all expenses
in connection with the qualification of the Notes and the Guarantees for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Notes;
(vi) the costs of preparing and delivering the Notes and the Guarantees to the
Underwriters, including any capital, stamp or other tax or duty payable upon
the issuance of the Notes or the Guarantees; (vii) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Notes; (viii) all
expenses and listing fees in connection with the listing of the Notes on the
New York Stock Exchange; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder
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which are not otherwise specifically provided for in this Section. It is
understood, however, that except as provided in this Section, Section 8 and
Section 11 hereof, you will pay all of your own costs and expenses, including
the fees of your counsel, transfer taxes on resale of any of the Notes by you,
and any advertising expenses connected with any offers you may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Simpson Thacher & Bartlett, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated the Time of
Delivery, with respect to the incorporation of the Company, this
Agreement, the Indenture, the validity of the Notes and the Guarantees,
the Registration Statement, the Prospectus, and other related matters
as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Andrews & Kurth L.L.P., counsel for the Company and the
Guarantors, shall have furnished to you their written opinion, dated
the Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Each of the Company and the Guarantors (other than
UTEK) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with requisite corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases a material amount of properties, or conducts
any material business, so as to require such qualification, or
is subject to no material liability or disability by reason of
failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of public officials or
officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(iv) Each Material Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
to the best of such counsel's knowledge after reasonable
investigation, Unimar has been duly formed and is validly
existing as a partnership under the laws of the State of
Texas; and all of the issued shares of capital stock of each
Material Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable, and (except for
directors' qualifying shares and shares held by third parties
solely to satisfy local law requirements and except as
otherwise set forth in the Prospectus), to the best of such
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counsel's knowledge after reasonable investigation and except
as set forth in a schedule to such counsel's opinion, all of
such shares of capital stock and 50% of the equity interests
in Unimar are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims
within the meaning of the Uniform Commercial Code (such
counsel being entitled to (A) state that the opinion in this
clause relating to the ownership of capital stock and equity
interests is based solely on a review of the corporate records
of the Company and its subsidiaries and the records of Unimar,
the certificate or certificates representing such shares of
capital stock and evidence of such equity interests in Unimar
and a certificate or certificates in respect of matters of
fact as to ownership of and liens, encumbrances, equities or
claims on such shares of capital stock and equity interests,
provided that such counsel shall state that he believes that
both you and he are justified in relying upon such certificate
or certificates and (B) rely in respect of the opinion in this
clause upon opinions of local counsel furnished to you at the
Time of Delivery and in respect of matters of fact upon
certificates of public officials or officers of the Company or
its subsidiaries furnished to you at the Time of Delivery,
provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions
and certificates);
(v) To the best of such counsel's knowledge after
reasonable investigation, other than as set forth in the
Prospectus, there is no pending or threatened action, suit or
proceeding before any court or any governmental agency or body
or any arbitrator involving the Company, any Material
Subsidiary or Unimar required to be disclosed in the
Registration Statement that is not adequately disclosed
therein;
(vi) This Agreement has been duly authorized, executed
and delivered by the Company;
(vii) The Notes have been duly authorized, executed,
issued and delivered by the Company and, assuming the due
authentication thereof by the Trustee, constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Guarantees have been
duly authorized, executed, issued and delivered by each
Guarantor and constitute valid and legally binding obligations
of each Guarantor entitled to the benefits provided by the
Indenture; and the Notes, the Guarantees and the Indenture
conform to the descriptions thereof in the Prospectus;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and each Guarantor and,
assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding
instrument of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) The issue and sale of the Notes, the issue of the
Guarantees and the compliance by the Company and the
Guarantors with all of the provisions of the Notes, the
Guarantees, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not result in any violation of the Restated
Certificate of Incorporation or By-laws of the Company or the
certificate of incorporation, restated certificate of
incorporation, articles of association or memorandum of
association, as applicable, or by-laws of any Guarantor (other
than UTEK) and, to the best of such counsel's knowledge after
reasonable investigation, such actions will not result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its Material Subsidiaries or, to
the best of the Company's knowledge,
<PAGE> 9
9
Unimar is a party or by which the Company or any of its
Material Subsidiaries or, to the best of such counsel's
knowledge, Unimar is bound or to which any of the property or
assets of the Company or any of its Material Subsidiaries or,
to the best of such counsel's knowledge, Unimar is subject, or
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company, any of its Material
Subsidiaries or, to the best of such counsel's knowledge,
Unimar or any of their properties (excluding breaches,
violations and defaults that, individually or in the
aggregate, will not have any material adverse effect on the
general affairs, management, financial position, stockholders'
equity, results of operations or prospects of the Company and
its subsidiaries taken as a whole) (such counsel being
entitled to rely in respect of the opinion in this clause
relating to statutes, orders, rules or regulations upon
opinions of local counsel furnished to you at the Time of
Delivery,provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions);
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body having jurisdiction over the
Company is required for the consummation by the Company and
the Guarantors of the transactions contemplated by this
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act, and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes and
the Guarantees by the Underwriters;
(xi) The statements made in the Prospectus under the
captions "Description of the Debt Securities" and
"__________", insofar as they purport to constitute summaries
of the legal matters and documents referred to therein, fairly
present the information called for with respect to such legal
matters and documents and fairly summarize such legal matters
and documents;
(xii) Neither the Company nor any of the Guarantors is
an "investment company" within the meaning of the Investment
Company Act and the published rules and regulations of the
Commission thereunder, and no registration of the Company or
any of the Guarantors under the Investment Company Act is
required for, or will be required as a consequence of, the
issuance, offer and sale of the Notes and the Guarantees
pursuant to this Agreement;
(xiii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Company prior to the Time of Delivery (other than the
financial statements and related schedules and engineering and
statistical data therein, as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the published rules and
regulations of the Commission thereunder; and
(xiv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and related schedules and engineering and
statistical data therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act
and the published rules and regulations of the Commission
thereunder.
Such counsel shall state that, although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in any of the documents referred to in subclause
(xiii) of this Clause (c) or in the Registration Statement or the
Prospectus (except as and to the extent described in subclause (xi) of
this Clause (c)), they have no reason to believe that
<PAGE> 10
10
(i) any of the documents referred to in subclause (xiii) of this Clause
(c) when such documents became effective or were so filed, as the case
may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of other
documents which were filed under the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; or (ii) as
of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion or belief) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion or
belief) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
or that, as of the Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion or belief) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required.
In rendering the opinions referred to in subclauses (ii) (other than
with respect to authorized capitalization), (iii), (iv), (v), (ix) and
(x) of this Clause (c), such counsel may rely upon an opinion of Newton
W. Wilson, III, Esq., General Counsel, Vice President-Administration
and Secretary of the Company, provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinion.
In rendering such opinion, such counsel may (A) state that
their opinion is limited to matters governed by the Federal laws of the
United States, the laws of the State of New York and the State of
Texas, and the General Corporation Law of the State of Delaware and (B)
rely (to the extent such counsel deem proper and specify in their
opinion), as to matters involving the application of the laws of other
jurisdictions, upon the opinions of local counsel referred to in
subclauses (iii), (iv) and (ix) of this Clause (c).
(d) On the date of the execution hereof and also at the Time
of Delivery, Price Waterhouse shall have furnished to you a letter or
letters, dated the respective date of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I
hereto;
(e) (i) None of the Company or any of its subsidiaries or
Unimar shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, which loss or
<PAGE> 11
11
interference is material to the Company and its subsidiaries taken as a
whole, and (ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the
capital stock (other than (i) any shares of capital stock of the
Company sold upon the exercise of a subscription, option or warrant or
the conversion of a security outstanding on the date of this Agreement,
(ii) any shares of such capital stock, or other securities convertible
or exercisable or exchangeable for such shares, in either case issued
pursuant to any employee stock option or benefit plan of the Company
existing on the date of this Agreement and (iii) any stock repurchases
pursuant to the Company's publicly announced stock repurchase program)
or any increase of more than $25,000,000 in the consolidated short-term
or long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in Clause (i) or (ii), is
in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes being delivered at the Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities (other than
Standard & Poor's corporation's "negative outlook" on its rating of the
Company's debt securities, which outlook was publicly announced prior
to the date hereof);
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war if
the effect of any such event specified in this Clause (iii) in your
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the
manner contemplated in the Prospectus; and
(h) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
and the Guarantors satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of the
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Time of
Delivery, and as to such other matters as you may reasonably request,
and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (f) of
this Section, and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold each Underwriter harmless
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may became subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter expressly for use therein.
<PAGE> 12
12
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by a party entitled to indemnification
under subsection (a) or (b) above (the "indemnified party") of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against a party required to provide indemnification to
such indemnified party under such subsection (the "indemnifying party"), notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. In no event shall an indemnifying party be liable for the fees
and expenses of more than one counsel (in addition to any local counsel), apart
from counsel to such indemnifying party, for all indemnified parties in
connection with any one action or separate but similar or related actions
arising out of the same general allegations or circumstances. No indemnifying
party shall be liable for any settlement of any such action effected without
its consent, provided that such consent is not unreasonably withheld or
delayed.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) 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 from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified
<PAGE> 13
13
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), 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 shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault 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 on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Underwriter agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten
by such Underwriter and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter would have 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
each Underwriter under this Section 8 shall be in addition to any liability
which such Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Notes which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Notes on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Notes, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Notes on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Notes, or the Company notifies you that it has so arranged for the
purchase of such Notes, you or the Company shall have the right to postpone the
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion and the opinion of the Company may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section 9 with like effect as if such person
had originally been a party to this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the purchase of
the Notes of one or more defaulting Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such Notes
which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Notes to be purchased hereunder, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
aggregate principal amount of Notes which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the aggregate principal amount of Notes
which such Underwriter agreed to purchase hereunder) of the Notes of such
defaulting Underwriter or Underwriters for
<PAGE> 14
14
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Notes of one or more defaulting Underwriters by you and the Company as provided
in subsection (a) above, the aggregate principal amount of Notes which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Notes to be purchased hereunder, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase the Notes of one or more defaulting Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of the Underwriters or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall have no liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but, if for any other reason any
Notes are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters for all of their out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of
the Notes not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Notes not so delivered except as
provided in Section 6 and Section 8 hereof.
12. All statements, requests, notices and agreements hereunder shall
be in writing, and if to any of the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to Goldman, Sachs & Co. at 85 Broad
Street, New York, N.Y. 10004, Attention: Registration Department; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Secretary. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of the Underwriters, the Company and, to the extent provided in
Sections 8 and 9 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of any of the Notes from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
<PAGE> 15
15
If the foregoing is in accordance with your understanding, please sign
and return to us nine counterparts hereof, and upon the acceptance hereof by
you this letter and such acceptance hereof shall constitute a binding agreement
between you and the Company.
Very truly yours,
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
[UNDERWRITERS]
<PAGE> 16
16
Schedule 1
Principal Amount
Underwriter of Notes
- ----------- ----------------
------------
============
<PAGE> 17
1
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules provided pursuant to Article 12 of Regulation S-X
audited by them and incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the applicable related published rules and
regulations thereunder with respect to Registration Statements on Form
S-3; and they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the Underwriters;
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements referred
to below, a reading of the latest available interim financial data of
the Company and its subsidiaries, a reading of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters regarding the specified
items for which representations are requested below, nothing came to
their attention as a result of the foregoing procedures that caused them
to believe that:
(A) at the date of the latest available interim
financial data and at a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated short-term or long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current assets (working capital) or
stockholders' equity or other items heretofore determined with
the Underwriters, or any increases in any items heretofore
determined with the Underwriters, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter;
(B) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (A)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items heretofore determined
with the Underwriters, or any increases in any items
heretofore determined with the Underwriters, in each case as
compared with the comparable period of the preceding year,
except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
<PAGE> 18
2
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Underwriters or in documents incorporated by reference in the Prospectus
specified by the Underwriters, and have compared certain of such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
<PAGE> 19
3
ANNEX II
MATERIAL SUBSIDIARIES
UNION TEXAS PETROLEUM ENERGY CORPORATION
UNION TEXAS INTERNATIONAL CORPORATION
UNION TEXAS EAST KALIMANTAN LIMITED
UNION TEXAS PAKISTAN, INC.
UNION TEXAS PETROLEUM LIMITED
UNISTAR, INC.
<PAGE> 1
EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------------------------------------------
1990 1991 1992 1993 1994
---------- ---------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C>
Net pretax income ................ $ 268,886 $ 447,972 $ 213,206 $ 26,983(1) $ 211,983
Fixed charges
Interest expense ............... 82,244 88,377 20,261 30,506 28,721
Preferred stock dividends
of a subsidiary .............. 11,791 5,934 4,674 1,681 --
Capitalized debt cost .......... 2,677 3,044 913 1,536 1,452
Interest portion of rent
expenses ..................... 6,915 6,201 2,840 2,777 3,170
---------- ---------- ---------- --------- ----------
Total fixed charges .......... 103,627 103,556 28,688 36,500 33,343
Less: Capitalized
interest, net ................ 13,313 39,852 14,408 4,623 1,464
---------- ---------- ---------- --------- ----------
90,314 63,704 14,280 31,877 31,879
Earnings before fixed
charges ........................ $ 359,200 $ 511,676 $ 227,486 $ 58,860 $ 243,862
========== ========== ========== ========= ==========
Ratio of earnings to
fixed charges .................. 3.47 4.94 7.93 1.61 7.31
</TABLE>
- ------------
(1) During 1993, the Company recorded a non-cash charge to depreciation,
depletion and amortization of $103 million pretax ($48 million
after-tax) for the write-down of its investment in the U.K. North Sea's
Piper field. Excluding the effect of the piper write-down, the ratio of
earnings to fixed charges for 1993 would have been 4.45.
<PAGE> 1
EXHIBIT 99.1
[UNION TEXAS PETROLEUM LETTERHEAD]
Contact: Carol L. Cox
(713) 968-2714
UNION TEXAS PETROLEUM ACQUIRES 15% WORKING INTEREST IN
PORCUPINE BASIN BLOCKS OFFSHORE IRELAND
Houston, March 16, 1995 -- Union Texas Petroleum Holdings, Inc. today
reported that its London-based subsidiary, Union Texas Petroleum Limited, has
acquired a 15% working interest in five and a half blocks in the Porcupine
Basin situated offshore Ireland, which were awarded by Mr. Emmet M. Stagg,
T.D., the Minister for State at the Department of Transport, Energy and
Commerce, on March 15, 1995.
"We are very pleased to share in the exploration of the Porcupine
Basin," said Mr. John W. J. Hardy, Managing Director of Union Texas Petroleum
Limited. "Our participation in this venture represents our third Irish oil and
gas venture in the past 12 months. We are committed to expanding our exploration
activities to other prospective areas in Ireland and the United Kingdom."
The five and a half blocks, which encompass a total of approximately
325,000 gross acres, are situated in the Atlantic Ocean about 95 miles west
of the Irish Mainland. The blocks involved are 34/24, 34/25, 34/30, 35/21,
35/24 and the eastern half of 35/23.
The operator of the consortium is Statoil (U.K.) Ltd., which has a
27.5% working interest. The remaining interest is held by
- more-
<PAGE> 2
Fina, 27.5% working interest; Conoco, 20% working interest; and Seafield, 10%
working interest.
The consortium's license for the five and a half blocks will be valid
for 15 years from March 15, 1995. During 1995-1997, the consortium plans to
acquire seismic data over the blocks and to conduct additional geological and
geophysical studies. Water depths range from 650 to 2,300 feet.
ST. GEORGE'S CHANNEL BASIN
In early 1995, Union Texas entered into an agreement to acquire a 25%
working interest in five and a half offshore blocks in the St. George's Channel
Basin offshore Ireland, subject to the approval of the Irish Minister for
Transport, Energy and Communications. Union Texas has agreed to acquire its
interest in the blocks, which encompass a total of about 345,000 gross acres,
from subsidiaries of Marathon Oil Company, operator of the venture. Marathon
holds the remaining 75% working interest. The initial exploratory well is
expected to begin drilling in the second quarter of 1995.
SLYNE/ERRIS BASIN
Union Texas also has a 30% working interest in a venture that was
awarded 11 offshore Ireland blocks as part of the first Irish Frontier Round in
March 1994. The blocks, which comprise 650,400 gross acres, are situated in the
Atlantic Ocean about 43 miles west of the Irish Mainland in the Slyne/Erris
basins. Statoil (U.K.) Ltd., as operator, has a 45% working interest. The
remaining 25% working interest is held by Rimrock Offshore Limited, a
wholly-owned subsidiary of Murphy Oil Corporation. The group has recently
<PAGE> 3
acquired an Aeromag survey over the area and is planning to shoot seismic this
year.
One of the largest independent producers located in the U.S.,
Houston-based Union Texas Petroleum Holdings, Inc. (NYSE: UTH) explores for and
produces oil and gas overseas primarily in the U.K. North Sea, Indonesia and
other strategic areas. The company also has petrochemical interests in the U.S.
# # #
Note to Editors and Reporters: A map of Union Texas' interests offshore Ireland
is available from Carol Cox in Houston at (713) 968-2714.
