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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 15, 1999
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VINTAGE PETROLEUM, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-10578 73-1182669
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
4200 One Williams Center, Tulsa, Oklahoma 74172
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (918) 592-0101
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Not applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
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On May 3, 1999, Vintage Petroleum, Inc. (the "Company") filed a
Registration Statement on Form S-3, File No. 333-77619 (the "Registration
Statement"), with the Securities and Exchange Commission (the "Commission")
relating to the public offering, pursuant to Rule 415 under the Securities Act
of 1933, as amended, of up to an aggregate of $400,000,000 in securities of the
Company. On May 11, 1999, the Commission declared the Registration Statement
effective. (The Registration Statement and definitive prospectus contained
therein are collectively referred to as the "Prospectus").
On June 16, 1999, the Company filed with the Commission a supplement to
the Prospectus, dated June 15, 1999 (the "Prospectus Supplement"), relating to
the issuance and sale in an underwritten public offering of up to 10,350,000
shares of the Company's common stock, par value $.005 per share. In connection
with the filing of the Prospectus Supplement with the Commission, the Company is
filing certain exhibits as part of this Form 8-K. See "Item 7. Financial
Statements and Exhibits."
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
The following exhibits are filed with this report on Form 8-K.
Exhibit No. Description
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1.1 Underwriting Agreement, dated June 15, 1999, by
and between the Company and Salomon Smith Barney
Inc., Warburg Dillon Read LLC, Morgan Stanley &
Co. Incorporated, Banc of America Securities LLC
and Jefferies & Company, Inc., as representatives
of the underwriters, with respect to the issuance
and sale by the Company of up to 10,350,000 shares
of the Company's common stock.
5.1 Opinion of Conner & Winters, A Professional
Corporation regarding the validity of the common
stock.
23.1 Consent of Conner & Winters, A Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Netherland, Sewell & Associates, Inc.
23.4 Consent of DeGolyer and MacNaughton.
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SIGNATURES
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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 hereunto duly authorized.
VINTAGE PETROLEUM, INC.
Date: June 16, 1999 By: /s/ Michael F. Meimerstorf
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Michael F. Meimerstorf
Vice President and Controller
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Exhibit Index
The following exhibits are filed with the report on Form 8-K.
Exhibit No. Description
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1.1 Underwriting Agreement, dated June 15, 1999, by and
between the Company and Salomon Smith Barney Inc.,
Warburg Dillon Read LLC, Morgan Stanley & Co.
Incorporated, Banc of America Securities LLC and
Jefferies & Company, Inc., as representatives of the
underwriters, with respect to the issuance and sale by the
Company of up to 10,350,000 shares of the Company's
common stock.
5.1 Opinion of Conner & Winters, A Professional Corporation
regarding the validity of the common stock.
23.1 Consent of Conner & Winters, A Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Netherland, Sewell & Associates, Inc.
23.4 Consent of DeGolyer and MacNaughton.
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EXECUTION COPY
Vintage Petroleum, Inc.
Common Stock
Underwriting Agreement
New York, New York
June 15, 1999
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Vintage Petroleum, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the number of shares of Common Stock, $.005 par
value ("Common Stock"), of the Company set forth in Schedule I hereto (said
shares to be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to the number of additional shares of
Common Stock set forth in Schedule II hereto to cover over-allotments (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I hereto other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. Certain terms
used herein are defined in Section 18 hereof.
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, each Under-writer as set forth below in this
Section 1.
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(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As filed,
such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that the Company makes no representations or warranties as to the
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information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the
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Securities shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the Proceeds to Company per share
set forth in Schedule I hereto, the amount of the Underwritten Securities set
forth opposite such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth in Schedule I hereto at the same
purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Final Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the number of shares
of the Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of shares of the Option Securities to
be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
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Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option
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Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
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that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect
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5
such compliance and (3) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other shares of Common Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock; or publicly
announce an intention to effect any such transaction, until the Business
Day set forth on Schedule I hereto, provided, however, that the Company may
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(i) register and sell the Securities offered in the offering, (ii)
register, issue and sell securities pursuant to any employee or director
stock option plan, stock ownership plan or dividend reinvestment plan of
the Company, (iii) issue Common Stock issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution Time;
and (iv) (A) register and issue Common Stock pursuant to the Company's
Stockholder Rights Plan and (B) issue preferred share purchase rights under
such plan.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result,
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6
under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities.
6. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Underwritten Securities and any
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Conner & Winters,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Company and Vintage Marketing, Inc., Vintage
Pipeline, Inc., Vintage Gas Inc., Vintage Petroleum International,
Inc., Vintage Petroleum Ecuador, Inc., Vintage Petroleum Argentina,
Inc., Vintage Oil Argentina, Inc. and Vintage Petroleum Boliviana,
Ltd. (individually a "Subsidiary" and collectively the "Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
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7
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of Common Stock have
been duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities have been duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange; the certificates
for the Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and to the
knowledge of such counsel, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(iv) to the knowledge of such counsel, (1) there is no pending
or threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and (2) there is
no franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required; and the statements included or incorporated by reference in
the Final Prospectus under the headings "Business and Properties--
Regulation" and "United States Federal Tax Consequences to Non-U.S.
Holders of Common Stock" fairly summarize the matters therein
described; and, to the knowledge of such counsel, the statements
included or incorporated by reference in the Final Prospectus under
the headings "Legal Proceedings" and "Risk Factors--Pending
Litigation" fairly summarize the matters therein described.
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final
Prospectus, except as otherwise specifically dealt with in their
opinion, and relying as to materiality to a large extent upon the
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8
opinions of officers and other representatives of the Company, no
facts have come to the attention of such counsel that have caused such
counsel to believe that on the Effective Date or at the Execution Time
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on the
Closing Date included or includes any untrue statement of a material
fact or omitted 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 (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in this
Agreement and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under any law or the
charter or by-laws of the Company or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or to any
judgment, order or decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(x) except as described in a Registration Rights Agreement
dated as of November 4, 1998, between the Company and Elf Aquitaine,
no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Oklahoma, the corporate laws of the State of Delaware or the Federal
laws of the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory
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9
to counsel for the Underwriters and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore , counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the Vice
Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened by appropriate governmental authorities; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Arthur Andersen LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and
<PAGE>
10
the respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the most recent
unaudited financial statements included or incorporated by reference in the
Registration Statement and Final Prospectus, if any, in accordance with
Statement on Auditing Standards No. 71, and stating in effect, except as
provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus, as indicated in their
report, if any, incorporated by reference in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and certain committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date
of the most recent audited financial statements included or
incorporated by reference in the Registration Statement and Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the Commission
with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of the Company
or decreases in the stockholders'
<PAGE>
11
equity of the Company as compared with the amounts shown on the
date of the most recent financial statements (other than any
capsule information), audited or unaudited, included or
incorporated by reference in the Registration Statement and the
Final Prospectus, or for the period from the date of the most
recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in
the Registration Statement and the Final Prospectus, to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in revenues or income
before provision for income taxes or in total or per share
amounts of net income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference
in the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the unaudited amounts of any capsule information
included or incorporated by reference in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, the information included or
incorporated by reference in Items 1, 2, 6, and 7 of the Company's
most recent Annual Report on Form 10-K, incorporated by reference in
the Registration Statement and the Final Prospectus, the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in each of the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus and any information of an accounting or financial nature
appearing in a Current Report on Form 8-K incorporated by reference in
the Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
<PAGE>
12
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 (other
than any change or decrease specified in such letters delivered at the
Execution Time) or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized
for trading on the Stock Exchange specified in Schedule I hereto, and
satisfactory evidence of such actions shall have been provided to the
Representatives.
(j) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each person listed in Schedule I hereto.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, New York 10019, on the Closing
Date.
<PAGE>
13
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of one Underwriters'
counsel) approved by the Representatives that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any Under-
writer within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
--------
however, that (i) the Company will not be liable in any such case to the extent
- -------
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein and (ii) with respect to
any untrue statement or omission of a material fact made in any Preliminary
Final Prospectus, the indemnity agreement contained in this Section 8(a) shall
not inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person or such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (x) the Company had previously furnished
copies of the Final Prospectus to the Representatives, (y) the untrue statement
or omission of a material fact contained in the Preliminary Final Prospectus was
corrected in the Final Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the Final Prospectus. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter
<PAGE>
14
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity, and will reimburse the Company and such other persons for
any legal or other expenses reasonably incurred by the Company or such other
persons in connection with investigating or defending any such action or claim
as such expenses are incurred. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company acknowledges
that the statements described in Schedule I hereto in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 8 to any indemnified party regarding any
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by such
indemnifying party, which consent shall not be unreasonably withheld.
<PAGE>
15
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
- -------- -------
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any
<PAGE>
16
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed as set forth in Schedule I; or, if sent to the Company,
will be mailed, delivered or telefaxed to (918) 588-9704 and confirmed to it at
4200 One Williams Center, Tulsa, OK 74172, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
<PAGE>
17
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Third Party Lock-Up Agreements. (a) The Company confirms that it
------------------------------
has, by written notice dated June 7, 1999 exercised its right to impose, in
connection with the offering of the Securities, on Elf Aquitaine the lockup
provisions pursuant to Section 2.4.B. of a Registration Rights Agreement by and
between the Company and Elf Aquitaine dated November 4, 1998 (the "Elf Lock-
Up").
(b) The Company agrees to (i)(A) take promptly any actions requested
in good faith by Salomon Smith Barney Inc. necessary to enforce the Elf Lock-Up
and (B) not waive any right granted to it under or amend or otherwise modify the
Elf Lock-Up (unless Salomon Smith Barney Inc. consents in writing to such
waiver, amendment or modification, which consent will not be unreasonably
withheld) and (ii) promptly notify Salomon Smith Barney Inc. (followed by
written notice) if the Company becomes aware that Elf Aquitaine has taken or
proposes to take any action which violates or may violate the Elf Lock-Up.
(c) If Salomon Smith Barney Inc. shall request the Company to enforce
the Elf Lock-Up pursuant to paragraph (b)(i)(A) of this Section 17 and the
Company would not otherwise have attempted to enforce the Elf Lock-Up, Salomon
Smith Barney Inc. shall reimburse the Company for all reasonable expenses
incurred by the Company in connection with the enforcement of the Elf Lock-Up;
provided, however, no such expenses will be reimbursed unless they are incurred
at the direction of, and have received the prior written approval from, Salomon
Smith Barney Inc.
18. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
<PAGE>
18
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus .
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
<PAGE>
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
VINTAGE PETROLEUM, INC.
By: /s/ William C. Barnes
------------------------------------
Name: William C. Barnes
Title: Executive Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
SALOMON SMITH BARNEY INC.
WARBURG DILLON READ LLC
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
JEFFERIES & COMPANY, INC.
By: SALOMON SMITH BARNEY INC.
By: /s/ Angela M. Reiton
------------------------------------
Name: Angela M. Reiton
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
20
SCHEDULE I
Underwriting Agreement dated June 15, 1999.
Registration Statement No. 333-77619
Representatives: Salomon Smith Barney Inc.
Warburg Dillon Read LLC
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Jefferies & Company, Inc.
Title, Purchase Price and Description of Securities:
Title: Common Stock, $.005 par value
Number of Underwritten Securities to be sold by the Company: 9,000,000
Number of Option Securities: 1,350,000
Price to Public per Share (include accrued dividends, if any): $9.50
Price to Public -- total: $85,500,000
Underwriting Discount per Share: $0.45125
Underwriting Discount -- total: $4,061,250
Proceeds to Company per Share: $9.04875
Proceeds to Company -- total: $81,438,750
Stock Exchange listing: New York Stock Exchange ("VPI")
Other provisions: None
Persons to deliver letters pursuant to Section 6(j):
Charles C. Stephenson, Jr.
Jo Bob Hille
William C. Barnes
William L. Abernathy
S. Craig George
Robert W. Cox
William E. Dozier
Bryan H. Lawrence
John T. McNabb, II
Andy R. Lowe
Michael F. Meimerstorf
Robert E. Phaneuf
Barry D. Quackenbush
Larry W. Sheppard
Martin L. Thalken
<PAGE>
21
Closing Date, Time and Location: June 21, 1999 at 9:00 a.m. at the offices of
Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New York 10019
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued by the Company without the consent of Salomon Smith Barney
Inc.: 90 days after the Execution Time.
Modification of items to be covered by the letter from
Arthur Andersen LLP delivered pursuant to
Section 6(e) at the Execution Time: None
Information furnished to the Company through the Representatives for purposes of
Section 8: The third full paragraph under the heading "Underwriting" in the
Final Prospectus
Contact Information for notices to Underwriters: Salomon Smith Barney Inc., 388
Greenwich Street, New York, New York 10013, Attention: Legal Counsel
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Number of Number of
Underwritten Option Securities
Underwriters Securities to be To Be Purchased
Purchased ---------------
---------
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
Salomon Smith Barney Inc. 1,800,000 270,000
- --------------------------------------------------------------------------------------------------
Warburg Dillon Read LLC 1,800,000 270,000
- --------------------------------------------------------------------------------------------------
Morgan Stanley & Co. Incorporated 1,800,000 270,000
- --------------------------------------------------------------------------------------------------
Banc of America Securities LLC 1,800,000 270,000
- --------------------------------------------------------------------------------------------------
Jefferies & Company, Inc. 1,800,000 270,000
- --------------------------------------------------------------------------------------------------
---------------- -----------------
- --------------------------------------------------------------------------------------------------
Total ............ 9,000,000 1,350,000
================ =================
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
[Form of Lock-Up Agreement] EXHIBIT A
Vintage Petroleum, Inc.
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Public Offering of Common Stock
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June ___, 1999
Salomon Smith Barney Inc.
Warburg Dillon Read LLC
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Jefferies & Company, Inc.
As Representatives of the several Underwriters,
[c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Vintage
Petroleum, Inc., a Delaware corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.005 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell, or
otherwise dispose of, directly or indirectly, any shares of capital stock of the
Company or any securities convertible into, or exercisable or exchangeable for
such capital stock, for a period of 90 days after the date of this Agreement;
provided, however, that (i) the undersigned shall be entitled to pledge,
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hypothecate or otherwise encumber shares of Common Stock, subject to the
foregoing restriction being agreed to by the pledgee of such shares and (ii) the
officers of the Company may, without such consent, sell or otherwise dispose of
up to 800,000 shares of Common Stock in the aggregate.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF CONNER & WINTERS APPEARS HERE]
June 15, 1999
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Re: Vintage Petroleum, Inc.
Registration Statement on Form S-3
File No. 333-77619 (the "Registration Statement")
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Gentlemen:
We have acted as counsel for Vintage Petroleum, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement and
with respect to the issuance and sale by the Company of up to ten million three
hundred fifty thousand (10,350,000) shares of the Company's Common Stock, $.005
par value per share (the "Shares"), (including up to one million three hundred
fifty thousand (1,350,000) shares subject to an over-allotment option granted by
the Company to the underwriters offering the Shares) offered pursuant to that
certain Prospectus Supplement dated June 15, 1999 (the "Prospectus Supplement").
As described in the Prospectus Supplement, the Company is selling the Shares
pursuant to an Underwriting Agreement dated June 15, 1999 (the "Underwriting
Agreement"), between the Company and Salomon Smith Barney Inc., Warburg Dillon
Read LLC, Morgan Stanley & Co. Incorporated, Banc of America Securities LLC and
Jefferies & Company, Inc., as representatives of the underwriters.
In reaching the conclusions expressed in this opinion, we have (a)
examined such certificates of public officials and of corporate officers and
directors and such other documents and matters as we have deemed necessary or
appropriate, (b) relied upon the accuracy of facts and information set forth in
all such documents, and (c) assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as copies, and the
authenticity of the originals from which all such copies were made.
<PAGE>
Vintage Petroleum, Inc.
June 15, 1999
Page 2
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued, delivered and paid for in accordance with the
terms and conditions of the Underwriting Agreement, will be validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
We are members of the bar of the State of Oklahoma. Our opinion
expressed above is limited to the laws of the State of Oklahoma, the corporate
laws of the State of Delaware, and the federal laws of the United States of
America, and we do not express any opinion herein concerning the laws of any
other jurisdiction.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the Prospectus Supplement under
the caption "Legal Opinions."
Yours very truly,
CONNER & WINTERS,
A Professional Corporation
/s/ CONNER & WINTERS
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Form S-3 Registration Statement (No. 333-77619) and related
Prospectus dated May 11, 1999, and Prospectus Supplement dated June 15, 1999, of
Vintage Petroleum, Inc. of our report dated February 24, 1999, included in
Vintage Petroleum, Inc.'s Annual Report on Form 10-K dated March 12, 1999, and
to all references to our Firm included in such Registration Statement and
related Prospectus and Prospectus Supplement.
/s/ ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
June 15, 1999
<PAGE>
EXHIBIT 23.3
[LETTERHEAD OF NETHERLAND, SEWELL & ASSOCIATES, INC.]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
As Petroleum Engineers, we hereby consent to the inclusion of the
information included or incorporated by reference in the Form S-3 Registration
Statement (No. 333-77619) and related Prospectus dated May 11, 1999, and
Prospectus Supplement dated June 15, 1999, of Vintage Petroleum, Inc., with
respect to the oil and gas reserves of Vintage Petroleum, Inc. for the United
States, Argentina, Ecuador and the El-Huemul-Koluel Kaike concession, the future
net revenues from such reserves, and the present value thereof, which
information has been included or incorporated by reference in such Form S-3
Registration Statement and related Prospectus and Prospectus Supplement in
reliance upon the report of this firm and upon the authority of this firm as
experts in petroleum engineering. We hereby further consent to all references
to our firm included in such Registration Statement and related Prospectus and
Prospectus Supplement.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ Clarence M. Netherland
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Clarence M. Netherland
Chairman
Dallas, Texas
June 15, 1999
<PAGE>
EXHIBIT 23.4
[LETTERHEAD OF DEGOLYER AND MACNAUGHTON]
June 15, 1999
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Gentlemen:
We hereby consent to the inclusion in the Form S-3 Registration Statement
(No. 333-77619) and related Prospectus dated May 11, 1999, and Prospectus
Supplement dated June 15, 1999, of Vintage Petroleum, Inc. (the "Company") of
information relating to the Bolivian oil and gas reserves, as of December 31,
1998, of the Company, the future net revenues from such reserves, and the
present value thereof, as set forth in our "Appraisal Report as of December 31,
1998, on Reserves of Certain Properties in Bolivia Operated by Vintage
Petroleum, Inc.--SEC Case," which information has been included or incorporated
by reference in such Form S-3 Registration Statement and related Prospectus and
Prospectus Supplement in reliance upon our report and the authority of this
firm as experts in petroleum engineering. However, we are necessarily unable to
verify (i) the accuracy of future net revenues and discounted present value of
future net revenues in the Company's filings because our estimates of future net
revenues and discounted present value of future net revenues have been combined
with estimates prepared by other petroleum engineers and (ii) the accuracy of
reserve estimates and the basis for changes to reserve estimates prior to
December 31, 1998. We further consent to the references to our firm included in
(i) the "Summary Oil and Gas Reserve Data" section in such Prospectus Supplement
and (ii) the "Experts" section in such Prospectus in such Prospectus Supplement.
Very truly yours,
/s/ DeGolyer and MacNaughton
DeGOLYER and MacNAUGHTON
