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Exhibit 1.1
EXECUTION COPY
MARATHON OIL
CORPORATION
DEBT
SECURITIES
Underwriting
Agreement
March 12,
2008
To the Representatives named
in
Schedule I hereto
of the Underwriters named
in
Schedule II hereto
Ladies and Gentlemen:
Marathon Oil Corporation, a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the underwriters named in Schedule II hereto
(the “ Underwriters ”), for whom you are acting
as representatives (the “ Representatives ”),
the principal amount of its debt securities identified in Schedule
I hereto (the “ Securities ”), to be issued
under the indenture specified in Schedule I hereto (the “
Indenture ”) between the Company and the Trustee
identified in such Schedule (the “ Trustee ”).
If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms
“Underwriters” and “Representatives,” as
used herein, shall each be deemed to refer to such firm or
firms.
The Company has prepared and
filed with the Securities and Exchange Commission (the “
Commission ”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “
Securities Act ”), a registration statement (the file
number of which is set forth in Schedule I hereto) on Form S-3,
including a prospectus (the “ Base Prospectus ”)
relating to certain debt securities to be issued from time to time
by the Company. The Company also has filed with, or proposes to
file with, the Commission pursuant to Rule 424 under the Securities
Act a prospectus supplement specifically relating to the Securities
(the “ Prospectus Supplement ”). The
registration statement, as amended to the date of this Agreement,
including the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (the
“ Rule 430 Information ”), is hereinafter
referred to as the “ Registration Statement ”;
and as used herein, the term “ Prospectus ”
means the Base Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form
first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with the
confirmation of sales of the Securities and the term “
Preliminary Prospectus ” means the preliminary
prospectus supplement specifically relating to the Securities
together with the Base Prospectus. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the “ Rule 462 Registration
Statement ”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. References herein to the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act which were filed
on or before the date of this
Agreement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the
case may be. The terms “ supplement ,” “
amendment ,” and “ amend ” as used
herein with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed by the Company under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “ Exchange
Act ”) after the date of this Agreement or the issue date
of the Base Prospectus, any Preliminary Prospectus or the
Prospectus, as the case may be, which are deemed to be incorporated
by reference therein. “Effective Date” shall mean each
date and time that the Registration Statement and any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
At or prior to the time when
sales of the Securities will be first made (the “ Time of
Sale ”), the Company has prepared the following
information (collectively, the “ Time of Sale
Information ”): a Preliminary Prospectus dated
March 12, 2008 (including the documents incorporated by
reference therein as of the Time of Sale), and the information
identified in Schedule III hereto.
The Company hereby agrees
with the Underwriters as follows:
1. The Company agrees to
issue and sell the Securities to the several Underwriters as
hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Company the respective principal amount of
Securities set forth opposite such Underwriter’s name in
Schedule II hereto at the purchase price set forth in Schedule I
hereto.
2. (a) The Company
understands that the several Underwriters intend (i) to make a
public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set
forth in the Time of Sale Information and the
Prospectus.
(b) The Company acknowledges
and agrees that the Underwriters are acting solely in the capacity
of an arm’s length contractual counterparty to the Company
with respect to any offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no such
Underwriter is advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and such Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by such Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company. The Company agrees that it
will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or
similar duty to the Company, in connection with such transaction or
the process leading thereto.
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3. Payment for the Securities
shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives, no
later than noon the Business Day (as defined below) prior to the
Closing Date (as defined below), on the date and at the time and
place set forth in Schedule I hereto (or at such other time and
place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you and the Company
may agree in writing). As used herein, the term “ Business
Day ” means any day other than a day on which banks are
permitted or required to be closed in New York City. The time and
date of such payment and delivery with respect to the Securities
are referred to herein as the “ Closing Date
.”
Payment for the Securities
shall be made against delivery to the nominee of The Depository
Trust Company for the respective accounts of the several
Underwriters of the Securities of one or more global notes (the
“ Global Note ”) representing the Securities,
with any transfer taxes payable in connection with the transfer to
the Underwriters of the Securities duly paid by the Company. The
Global Note will be made available for inspection by the
Representatives at such place as the Representatives and the
Company shall agree not later than 1:00 p.m., New York City time,
on the Business Day prior to the Closing Date.
4. The Company represents and
warrants to and agrees with each of the Underwriters
that:
(a) The Registration
Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the Securities Act
that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act has been received by the Company. No stop order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or threatened
by the Commission; as of the Effective Date, the Registration
Statement complied in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “ Trust Indenture Act
”), and did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment
or supplement thereto and as of the Closing Date, the Prospectus
did not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions in the Registration
Statement and the Prospectus and any amendment or supplement
thereto made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use
therein. Each
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preliminary prospectus filed
as part of the registration statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder.
(b) The Time of Sale
Information at the Time of Sale and at the Closing Date did not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Time of Sale Information.
(c) The Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “ issuer free writing
prospectus ” (as defined in Rule 433 under the Securities
Act) (an “ Issuer Free Writing Prospectus ”)
other than (i) the documents listed on Schedule III hereto and
(ii) any other written communications, in each case approved
in writing in advance by the Representatives. Each such Issuer Free
Writing Prospectus complied in all material respects with the
Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the
Preliminary Prospectus accompanying, or delivered prior to delivery
of, or filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Time of Sale and at the Closing
Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus. Each Issuer Free Writing Prospectus (including
the final term sheet prepared and filed pursuant to
Section 5(a) hereto) does not include any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated therein by reference
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(d) The documents (the
“ Incorporated Documents ”) incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, when filed with the Commission, conformed
or will conform, as the case may be, in all material respects with
the requirements of the Exchange Act.
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(e) The Company (i) has
been duly incorporated, is validly existing as a corporation in
good standing under the laws of the State of Delaware,
(ii) has the corporate power and authority to own its property
and to conduct its business as described in the Time of Sale
Information and the Prospectus and (iii) is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect the consolidated financial position,
stockholders’ equity or results of operations of on the
Company and its subsidiaries, taken as a whole.
(f) Each subsidiary of the
Company which is a significant subsidiary as defined in Rule
1-02(w) of Regulation S-X (a “ Significant Subsidiary
”) (i) has been duly formed, is validly existing in good
standing under the laws of the jurisdiction of its formation,
(ii) has the corporate, limited liability company, limited
partnership or partnership power and authority to own its property
and to conduct its business as described in the Time of Sale
Information and the Prospectus and (iii) is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the consolidated financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole.
(g) The authorized capital
stock of the Company conforms as to legal matters to the
description thereof contained in the Time of Sale Information and
the Prospectus.
(h) This Agreement has been
duly authorized, executed and delivered by the Company.
(i) The Securities have been
duly authorized, and, when issued and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company and is duly qualified under the Trust Indenture Act and
constitutes a valid and binding instrument, enforceable in
accordance with its terms, except as the enforceability thereof is
subject to the effects of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other laws relating to or affecting creditors’
rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (iii) any implied
covenants of good faith and fair dealing; the Securities and the
Indenture will conform to the descriptions thereof in the Time of
Sale Information and the Prospectus.
(j) The execution and
delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Indenture and the
Securities will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or any
agreement, indenture or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and
its
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subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
Significant Subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency
that has not already been obtained is required for the performance
by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities.
(k) Neither the Company nor
any of its Significant Subsidiaries is in violation of its
corporate charter or by-laws or other constitutive document or in
default under any agreement, indenture or instrument, which default
could reasonably be expected to have a material adverse effect on
the consolidated financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole, and no event or condition has occurred or exists which,
with the giving of notice or the lapse of time or both, would
result in any such violation or default which would have such an
effect. Except as described in the Time of Sale Information and the
Prospectus, neither the Company nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or regulation or
court decree to which it may be subject, which violation could
reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole.
(l) There has not occurred
any material adverse change, or any development involving a
material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Information and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this
Agreement).
(m) There are no legal or
governmental investigations or proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is
subject, that are required to be described in the Registration
Statement, the Time of Sale Information or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement, the Time of Sale Information or the Prospectus or to be
filed as exhibits to the Registration Statement that are not
described or filed as required.
(n) To the best of the
Company’s knowledge, PricewaterhouseCoopers LLP, who have
certified the financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules
included or incorporated by reference in the Prospectus, are
independent public accountants with respect to the Company within
the meaning of the Securities Act.
(o) 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 Time of
Sale Information and the Prospectus will not be, required to
register as an “ investment company ” as such
term is defined in the Investment Company Act of 1940, as
amended.
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(p) The Company is not an
ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Securities Act, in each case at the times
specified in the Securities Act in connection with the offering of
the Securities.
5. The Company covenants and
agrees with each of the several Underwriters as follows:
(a) to file the Preliminary
Prospectus in a form approved by you pursuant to Rule 424 under the
Securities Act as required by Rule 424(b); to file the Prospectus
in a form approved by you pursuant to Rule 424 under the Securities
Act not later than the Commission’s close of business on the
second Business Day following the date of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b) and
430B under the Securities Act; to pay the registration fees for
this offering within the time period required by Rule 456(b)1(i)
under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date; and to file
any Issuer Free Writing Prospectus (including the final term sheet
in the form of Schedule IV hereto) to the extent required by Rule
433 under the Securities Act;
(b) to furnish to you,
without charge, five conformed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the Business Day
next succeeding the date of this Agreement and during the period
mentioned in Section 5(f) or 5(g) below, as many copies of the
Prospectus and each Issuer Free Writing Prospectus (if applicable)
and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request;
(c) from the date hereof and
prior to the Closing Date, to furnish to you a copy of each
proposed free writing prospectus, any proposed amendment or
supplement to the Registration Statement or the Prospectus, for
your review, and not to use or file any such proposed free writing
prospectus, amendment or supplement to which you reasonably
object;
(d) not to take any action
that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder;
(e) to file promptly all
reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities, and during such same
period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request
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by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and
(iv) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities
for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(f) if at any time prior to
the Closing Date (i) any event shall occur or condition shall
exist as a result of which the Time of Sale Information as then
amended or supplemented would include 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,
not misleading or (ii) it is necessary to amend or supplement
the Time of Sale Information to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to
the extent required) and furnish to the Underwriters and to such
dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended
or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with
law;
(g) if, during such period
after the first date of the public offering of the Securities as in
the opinion of counsel for the Underwriters the Prospectus (or in
lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at the
expense of the Company, to the Underwriters and to the dealers
(whose names and addresses you have furnished to the Company) to
which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, such amendments
or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus (or in
lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with
applicable law;
(h) to endeavor to qualify
the Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request and to
continue such qualification in effect so long as reasonably
required for distribution of the Securities; provided that
in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to subject itself to
taxation in any jurisdiction;
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(i) to make generally
available to the Company’s security holders and to you as
soon as practicable an earnings statement that satisfies the
provisions of Section 11(a) of the Securities Act and the
rules and regulations (including Rule 158) of the Commission
thereunder covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the
“effective date” (as defined in Rule 158) of the
Registration Statement;
(j) during the period
beginning on the date hereof and continuing to and including the
Business Day following the Closing Date (unless a different period
is set forth in the Time of Sale Information and the Prospectus, in
which case during such period), not to offer, sell, contract to
sell or otherwise dispose of any debt securities of or guaranteed
by the Company which are substantially similar to the
Securities;
(k) to use the net proceeds
received by the Company from the sale of the Securities pursuant to
this Agreement in the manner specified in the Time of Sale
Information and the Prospectus under the caption “Use of
Proceeds”; and
(l) whether or not the
transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including
any expenses of the Trustee,
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