ConocoPhillips Canada Funding
Company I
ConocoPhillips Canada Funding
Company II
Debt Securities
fully and unconditionally guaranteed by ConocoPhillips and
ConocoPhillips
Company
1.
Introductory. ConocoPhillips, a Delaware corporation
(“ ConocoPhillips ”), ConocoPhillips Company, a
Delaware corporation and a wholly owned subsidiary of
ConocoPhillips (“ CPCo ”), and ConocoPhillips
Canada Funding Company I, an unlimited liability company organized
under the laws of Nova Scotia, Canada and an indirect wholly owned
special purpose finance subsidiary of ConocoPhillips (“
Funding I ”), propose that Funding I will issue and
sell from time to time certain of its unsecured debt securities
fully and unconditionally guaranteed by ConocoPhillips and CPCo
(the “ Funding I Guarantors ” ) registered under
the registration statement referred to in Section 2(a) (such
securities, including the guarantees relating thereto by
ConocoPhillips and CPCo (the “ Funding I
Guarantees ” ), being hereinafter called the “
Funding I Registered Securities ”). Further,
ConocoPhillips, CPCo and ConocoPhillips Canada Funding Company II,
an unlimited liability company organized under the laws of Nova
Scotia, Canada and an indirect wholly owned special purpose finance
subsidiary of ConocoPhillips (“ Funding II ”
and, together with Funding I and ConocoPhillips jointly and
severally, being hereafter called the “ Company
”), propose that Funding II will issue and sell from time to
time certain of its unsecured debt securities fully and
unconditionally guaranteed by ConocoPhillips and CPCo (the “
Funding II Guarantors ” and, together with the Funding
I Guarantors, the “ Guarantors ”) registered
under the registration statement referred to in Section 2(a) (such
securities, including the guarantees relating thereto by
ConocoPhillips and CPCo (the “ Funding II Guarantees
” and, together with the Funding I Guarantees, the “
Guarantees ”), being hereinafter called the “
Funding II Registered Securities ” and, together with
the Funding I Registered Securities, the “ Registered
Securities ”). The Funding I Registered Securities will
be issued under an indenture, to be dated as of October 13,
2006 (the “ Funding I Indenture ”), among
ConocoPhillips, CPCo, Funding I and The Bank of New York Trust
Company, National Association, as trustee (the “ Funding I
Trustee ”), in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling
prices and other terms, with all such terms for any particular
series of the Funding I Registered Securities being determined at
the time of sale. The Funding II Registered Securities will be
issued under an indenture, to be dated as of October 13, 2006 (the
“ Funding II Indenture ” and, together with the
Funding I Indenture, the “ Indentures ”), among
ConocoPhillips, CPCo, Funding II and The Bank of New
York
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Trust Company,
National Association, as trustee (the “ Funding II
Trustee ” and, together with the Funding I Trustee, the
“ Trustee ”), in one or more series, which
series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for
any particular series of the Funding II Registered Securities being
determined at the time of sale. Particular series of the Registered
Securities will be sold pursuant to a Terms Agreement referred to
in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Funding I
Registered Securities involved in any such offering are hereinafter
referred to as the “ Funding I Offered Securities
”. The Funding II Registered Securities involved in any such
offering are hereinafter referred to as the “ Funding II
Offered Securities ” and, together with the Funding I
Offered Securities, the “ Offered Securities ”.
The firm or firms which agree to purchase the Offered Securities
are hereinafter referred to as the “ Underwriters
” of such securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms
Agreement referred to in Section 3 are hereinafter referred to
as the “ Representatives ”; provided, however,
that if the Terms Agreement does not specify any representative of
the Underwriters, the term “Representatives”, as used
in this Agreement (other than in Sections 2(b), 5(c) and 6 and
the second sentence of Section 3), shall mean the
Underwriters.
2.
Representations and Warranties of the Company . The Company,
as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each
Underwriter that:
(a) The Company
and CPCo meet the requirements for use of Form S-3 under the Act
and have prepared and filed with the Securities and Exchange
Commission (“ Commission ”) an automatic shelf
registration statement, as defined in Rule 405, on
Form S-3 (Nos. 333-137890, 333-137890-01, 333-137890-02 and
333-137890-03), including a prospectus (hereinafter referred to as
the “ Base Prospectus ”), relating to the
Registered Securities, which registration statement became
effective upon filing. Such registration statement, as amended at
the time of any Terms Agreement referred to in Section 3
entered into in connection with a specific offering of the Offered
Securities (each such date and time as specified in such Terms
Agreement hereinafter referred to as the “ Execution
Time ”) and including any documents incorporated by
reference therein, including exhibits (other than any Form T-1) and
financial statements and any prospectus supplement relating to the
Offered Securities that is filed with the Commission pursuant to
Rule 424(b) (“ Rule 424(b) ”) under the
Securities Act of 1933 (the “ Act ”) and deemed
part of such registration statement pursuant to Rule 430B
under the Act, is hereinafter referred to as the “
Registration Statement .” The Base Prospectus, as
supplemented as contemplated by Section 3 to reflect the terms of
the Offered Securities and the terms of offering thereof, as first
filed with the Commission pursuant to and in accordance with
Rule 424(b), including all material incorporated by reference
therein, is hereinafter referred to as the “ Final
Prospectus .” Any preliminary prospectus supplement to
the Base Prospectus which describes the Offered Securities and the
offering thereof and is used prior to filing of the Final
Prospectus, together with the Base Prospectus, is
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hereinafter
referred to as the “ Preliminary Final Prospectus
.” “ Free Writing Prospectus ” shall mean
a free writing prospectus, as defined in Rule 405 under the
Act. “ Issuer Free Writing Prospectus ” shall
mean an issuer free writing prospectus, as defined in Rule 433
under the Act. “ Disclosure Package ” shall
mean, with respect to any specific offering of the Offered
Securities, (i) the Base Prospectus, as amended and
supplemented to the Execution Time, (ii) the Preliminary Final
Prospectus, if any, used most recently prior to the Execution Time,
(iii) the Issuer Free Writing Prospectuses, if any, identified
in Schedule B to the Terms Agreement, (iv) the final term
sheet prepared and filed pursuant to Section 4(c) hereto, if any,
and (v) any other Free Writing Prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part
of the Disclosure Package. No document has been or will be prepared
or distributed in reliance on Rule 434 under the
Act.
(b) On the
effective date of the registration statement relating to the
Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of
1939 (“ Trust Indenture Act ”) and the rules and
regulations of the Commission (“ Rules and Regulations
”) and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and at the Execution Time and at the Closing Date, the Registration
Statement and the Final Prospectus will conform in all respects to
the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from any of such documents
based upon written information furnished to the Company by any
Underwriter through the Representatives, if any, specifically for
use therein.
(c) At the
Execution Time, the Disclosure Package will not contain any 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, not misleading,
except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(d) (i) At
the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Sections 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Offered
Securities in reliance on the exemption in Rule 163, and
(iv) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company
was or is (as the case may be) a
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“well-known seasoned issuer” as
defined in Rule 405. The Company agrees to pay the fees
required by the Commission relating to the Offered Securities
within the time required by Rule 456(b)(1) without regard to
the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(e) (i) At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of any Offered
Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company be considered an Ineligible
Issuer.
(f) Each Issuer
Free Writing Prospectus, if any, and the final term sheet prepared
and filed pursuant to Section 4(c) hereto do not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified, except that the
foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein.
3.
Purchase and Offering of Offered Securities . The obligation
of the Underwriters to purchase the Offered Securities will be
evidenced by an agreement or exchange of other written
communications (“ Terms Agreement ”) at the time
the Company determines to sell the Offered Securities. The Terms
Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify
the firm or firms which will be Underwriters, the names of any
Representatives, the principal amount of the Offered Securities to
be purchased by each Underwriter, the commission or fee to be paid
to the Underwriters and the terms of the Offered Securities not
already specified in the applicable Indenture, including, but not
limited to, interest rate, maturity, any redemption provisions and
any sinking fund requirements. The Terms Agreement will also
specify the time and date of delivery and payment (such time and
date, or such other time not later than seven full business days
thereafter as the Representatives and the Company agree as the time
for payment and delivery, being herein and in the Terms Agreement
referred to as the “ Closing Date ”), the place
of delivery and payment and any details of the terms of offering
that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the
Closing Date (if later than the otherwise applicable settlement
date) shall be the date for payment of funds and delivery of
certificates for (or book-entry interests representing) all the
Offered Securities sold pursuant to the offering. The obligations
of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters
propose to offer the Offered Securities for sale as set forth in
the Final Prospectus.
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If the Terms
Agreement specifies “Book-Entry Only” settlement or
otherwise states that the provisions of this paragraph shall apply,
each of Funding I and Funding II will deliver against payment of
the cash purchase price the Offered Securities to be issued by it
in the form of one or more permanent global securities in
definitive form (the “ Global Securities ”)
deposited with the Trustee as custodian for The Depository Trust
Company (“ DTC ”) and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent
global securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Final
Prospectus. Payment for the Funding I Offered Securities shall be
made by the Underwriters in Federal (same day) funds by official
check or checks or wire transfer to an account previously
designated by Funding I at a bank acceptable to the
Representatives, in each case drawn to the order of Funding I at
the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Funding I Offered
Securities. Payment for the Funding II Offered Securities shall be
made by the Underwriters in Federal (same day) funds by official
check or checks or wire transfer to an account previously
designated by Funding II at a bank acceptable to the
Representatives, in each case drawn to the order of Funding II at
the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Funding II Offered
Securities.
4.
Certain Agreements of the Company . The Company agrees with
the several Underwriters that it will furnish to counsel for the
Underwriters one signed copy of the registration statement relating
to the Registered Securities, including all exhibits, in the form
it became effective and of all amendments thereto and that, in
connection with each offering of Offered Securities:
(a) The Company
will file the Final Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, subparagraph (5)) not later
than the second business day following the execution and delivery
of the Terms Agreement.
(b) During any
time when a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by
any Underwriter or dealer (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), the
Company will advise the Representatives promptly of any proposal to
amend or supplement the Registration Statement or the Final
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or
supplement; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of
the institution by the Commission of any stop order proceedings or
any notice from the Commission objecting to its use in respect of
the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
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(c) The Company
will prepare a final term sheet, containing solely a description of
the Offered Securities, in a form approved by the Representatives,
and will file such term sheet pursuant to Rule 433(d) under the Act
within the time required by such Rule.
(d) If there
occurs an event or development as a result of which the Disclosure
Package would include an untrue statement of a material fact or
would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will promptly notify the
Representatives, so that any use of the Disclosure Package may
cease until it is amended or supplemented, and will promptly
prepare and file with the Commission, at its own expense, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such
compliance.
(e) If, at any
time when a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by
any Underwriter or dealer (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include an 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 is necessary at any time to amend
the Final Prospectus to comply with the Act, the Company promptly
will notify the Representatives of such event and will promptly
prepare and file with the Commission, at its own expense, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance. The
terms “supplement” and “amendment” as used
in this Agreement include, without limitation, all documents filed
by the Company with the Commission subsequent to the date of the
Final Prospectus that are deemed to be incorporated by reference in
the Final Prospectus. Neither the Representatives’ consent
to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(f) As soon as
practicable, but not later than 16 months, after the date of
each Terms Agreement, ConocoPhillips will make generally available
to its security holders an earnings statement covering a period of
at least 12 months beginning after the latest of (i) the
effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and
(iii) the date of ConocoPhillips’ most recent Annual
Report on Form 10-K filed with the Commission prior to the date of
such Terms Agreement, which will satisfy the provisions of Section
11(a) of the Act.
(g) The Company
will furnish to the Representatives copies of the Registration
Statement, including all exhibits, and during any time when
a
7
prospectus
relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172), the Base Prospectus, any related
Preliminary Final Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
as the Representatives reasonably request.
(h) The Company
will use its reasonable best efforts to arrange for the
qualification of the Offered Securities for sale and the
determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution; provided, however, that none of ConocoPhillips,
Funding I, Funding II or CPCo will be required in connection
therewith to register or qualify as a foreign corporation where it
is not now so qualified or to execute a general consent to service
of process in any jurisdiction or subject itself to taxation in any
jurisdiction where it is not now so subject. The Company will
promptly advise the Representatives of the receipt by it or CPCo of
any notification with respect to the suspension of the
qualification of the Offered Securities for offer and sale in any
such jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(i) During the
period of five years after the date of any Terms Agreement, the
Company will furnish or make available to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of
ConocoPhillips’ annual report to stockholders for such year;
and the Company will furnish or make available to the
Representatives (i) as soon as available, a copy of each
report (other than a report on Form 11-K) and any definitive proxy
statement of ConocoPhillips filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders, and
(ii) from time to time, such other information concerning
ConocoPhillips, Funding I, Funding II or CPCo as the
Representatives may reasonably request in connection with the
offering of the Offered Securities.
(j) The Company
will pay all expenses incident to the performance of its
obligations under the Terms Agreement (including the provisions of
this Agreement), for any filing fees or other expenses (including
reasonable fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate in
accordance with Section 4(h) and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Offered Securities, for any applicable filing fee
incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company’s officers
and employees and any other expenses of the Company in connection
with attending or hosting meetings with prospective
8
purchasers of
Registered Securities and for expenses incurred in preparing,
printing and distributing the Final Prospectus, any preliminary
prospectuses, any preliminary prospectus supplements or any other
amendments or supplements to the Final Prospectus to the
Underwriters.
(k) The Company
agrees that, unless it has obtained or will obtain, as the case may
be, the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company
that, unless it has obtained or will obtain, as the case may be,
the prior written consent of the Company, it has not made and will
not make any offer relating to the Offered Securities that would
constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as
defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433,
other than the final term sheet prepared and filed pursuant to
Section 4(c) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses, if any, included in Schedule B to
the applicable Terms Agreement. Any such free writing prospectus
consented to by the Representatives or the Company is hereinafter
referred to as a “ Permitted Free Writing Prospectus
.” The Company agrees that (x) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus
as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with the requirements of Rules
164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping.
(l) The Company
consents to the use by any Underwriter of a free writing prospectus
that (a) is not an Issuer Free Writing Prospectus, and
(b) contains only (i) information describing the
preliminary terms of the Offered Securities or their offering, (ii)
information required or permitted by Rule 134 under the Act
that is not “issuer information” as defined in
Rule 433 or (iii) information that describes the final
terms of the Offered Securities or their offering and that is
included in the final term sheet prepared and filed pursuant to
Section 4(c) hereto.
(m) The Company
will not, and ConocoPhillips will cause CPCo not to, offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement
under the Act relating to United States dollar-denominated debt
securities issued or guaranteed by ConocoPhillips, Funding I,
Funding II or CPCo and having a maturity of more than one year from
the date of issue, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representatives for a period beginning at
the time of execution of the Terms Agreement and ending the number
of days after the Closing Date specified under
“Blackout” in the Terms Agreement.
5.
Conditions of the Obligations of the Underwriters . The
obligations of the several Underwriters to purchase and pay for the
Offered Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein,
to the
9
accuracy of the
statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions
precedent:
(a) On or prior to
the Execution Time, the Representatives, on behalf of the
Underwriters, shall have received a letter, dated the date of
delivery thereof, of Ernst & Young LLP confirming that they are
independent registered public accountants within the meaning of the
Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their
opinion the financial statements and any schedules audited by them
and included or incorporated by reference in the Base Prospectus,
Preliminary Final Prospectus and Final Prospectus comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have
performed the procedures specified by the Public Company Accounting
Oversight Board for a review of interim financial information as
described in Statement of Auditing Standards No. 100, Interim
Financial Information, on any unaudited financial statements
included in the Registration Statement;
(iii) on the basis
of the review referred to in clause (ii) above, a reading of
the latest available interim financial statements of
ConocoPhillips, inquiries of officials of ConocoPhillips who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited
financial statements, if any, included in the Disclosure Package or
the Final Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) if any
unaudited “capsule” information is contained in the
Disclosure Package or the Final Prospectus, the unaudited
consolidated total revenues, net income and net income per share
amounts or other amounts constituting such “capsule”
information and described in such letter do not agree with the
corresponding amounts set forth in the unaudited consolidated
financial statements or were not determined on a basis
substantially consistent with that of the corresponding amounts in
the audited statements of income;
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(C) at the date of
the latest available balance sheet read by such accountants, or at
a subsequent specified date not more than three business days prior
to the date of the such letter, there was any change in the capital
stock or any increase in short-term indebtedness or long-term debt
of ConocoPhillips and its consolidated subsidiaries or, at the date
of the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets (working
capital) or stockholders’ equity, as compared with amounts
shown on the latest balance sheet included in the Disclosure
Package or the Final Prospectus; or
(D) for the period
from the closing date of the latest income statement included in
the Disclosure Package or the Final Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding period
of the previous year and with the period of corresponding length
ended the date of the latest income statement included in the
Disclosure Package or the Final Prospectus, in consolidated total
revenues or net income;
except in all
cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Disclosure Package and the Final
Prospectus discloses have occurred or may occur or which are
described in such letter;
(iv) they have
compared specified dollar amounts (or percentages derived from such
dollar amounts) and other financial information contained in the
Registration Statement, the Final Prospectus and the Disclosure
Package (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of ConocoPhillips and its subsidiaries
subject to the internal controls of ConocoPhillips’
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter;
and
(v) they have read
any pro forma financial information which is included in the
Disclosure Package or the Final Prospectus and performed the
additional procedures suggested by Example D of Statement of
Auditing Standards No. 72.
All financial
statements and schedules included in material incorporated by
reference into the Disclosure Package or the Final Prospectus shall
be deemed
included in the
Disclosure Package or the Final Prospectus for purposes of this
subsection.
(b) The Final
Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 4(a) of this Agreement.
The final term sheet contemplated by Section 4(c) hereto, and any
other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by
Rule 433. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof or any notice from
the Commission objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to
the execution of the Terms Agreement, there shall not have occurred
(i) any change, or any development or event involving a
prospective change, in the condition (financial or other),
business, properties or results of operations of ConocoPhillips and
its subsidiaries taken as one enterprise which, in the judgment of
a majority in interest of the Underwriters including any
Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of ConocoPhillips
by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of
ConocoPhillips (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange or any suspension of trading of
any securities of ConocoPhillips on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak
or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in
the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities.
(d) The
Representatives, on behalf of the Underwriters, shall have received
an opinion, dated the Closing Date, of Baker Botts L.L.P., counsel
for ConocoPhillips, to the effect that:
(i) ConocoPhillips
has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with
corporate power
and authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Funding I
Indenture has been duly authorized, executed and delivered by the
Funding I Guarantors and has been duly qualified under the Trust
Indenture Act; the Funding I Guarantee of each of the Funding I
Guarantors has been duly authorized, executed and delivered by such
Funding I Guarantor; assuming the due authorization, execution and
delivery by Funding I of the Funding I Indenture and the due
authorization, execution, issuance and delivery of the Funding I
Offered Securities by Funding I in accordance with the provisions
of the Funding I Indenture and the Terms Agreement (including the
provisions of this Agreement), the Funding I Indenture and the
Funding I Offered Securities are valid and legally binding
obligations of Funding I, enforceable against Funding I in
accordance with their terms, and the Funding I Indenture and the
Funding I Guarantees of each of the Funding I Guarantors are valid
and legally binding obligations of such Funding I Guarantor,
enforceable against such Funding I Guara
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