Exhibit 1.1
ANADARKO PETROLEUM
CORPORATION
(a Delaware
corporation)
Debt Securities
UNDERWRITING
AGREEMENT
(Standard
Provisions)
June 2009
To the Representatives of the
several Underwriters named in
the respective Terms Agreements hereinafter
described.
Dear Sirs:
Anadarko Petroleum Corporation, a
Delaware corporation (the “ Company ”), proposes
to issue and sell its debt securities (the “
Securities ”) in one or more offerings on terms
determined at the time of sale. The Securities will be issued in
one or more series under an indenture specified in the applicable
Terms Agreement (the “ Indenture ”). Each series
of Securities to be issued may vary as to aggregate principal
amount, currency, maturity, interest rate or rates and timing of
payments thereof, redemption provisions, sinking fund requirements,
conversion provisions, if any, and any other variable terms which
the Indenture contemplates may be set forth in the Securities as
issued from time to time.
The provisions included herein (the
“ Standard Provisions ”) shall be incorporated
by reference into each Terms Agreement. The term “you”
or “your” as used herein, unless the context otherwise
requires, shall mean such of the parties to whom these Standard
Provisions are addressed as are named in the applicable Terms
Agreement.
Each offering of Securities will be
made through one or more of you or through an underwriting
syndicate managed by one or more of you. Whenever the Company
determines to make an offering of Securities, it will enter into an
agreement substantially in the form of Exhibit A hereto (the
“ Terms Agreement ”) providing for the sale of
such Securities to, and the purchase and offering thereof by, one
or more of you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their
behalf (the “ Underwriters ,” which term shall
include you whether acting alone in the sale of Securities or as
members of an underwriting syndicate). The representative or
representatives of the Underwriters, if any, specified in a Terms
Agreement are hereinafter referred to as the “
Representatives .” The Terms Agreement relating to
each offering of Securities shall specify the principal amount of
each series of the Securities to be issued, whether such Securities
are senior or subordinated debt securities, and their terms not
otherwise specified in the Indenture, the names of the Underwriters
participating in such offering (subject to substitution as provided
in Section 9 hereof) and the principal amount of each series
of the Securities which each Underwriter severally agrees to
purchase (collectively, the “ Firm Securities
”), the names of such of you and such other Underwriters, if
any, acting as co-managers in connection with such offering, the
price at which each series of the Securities are to be purchased by
the Underwriters from the Company, the initial public offering
price of each such series and the time and place of delivery and
payment.
In addition, the Terms Agreement shall specify
the maximum principal amount of each series of the Securities, if
any (the “ Additional Securities ”), that the
Company proposes to issue and sell to the Underwriters if and to
the extent that you shall have determined to exercise, on behalf of
the several Underwriters, the right to purchase such Additional
Securities. The Terms Agreement may take the form of an exchange of
any standard form of written telecommunication between you and the
Company. Each offering of Securities will be governed by these
Standard Provisions, as supplemented by the applicable Terms
Agreement, and these Standard Provisions and such Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter
participating in the offering of such Securities.
All references in these Standard
Provisions to financial statements and schedules and other
information which is “contained,”
“included” or “stated” (or other references
of like import) in the Registration Statement, Disclosure Package,
Prospectus or preliminary prospectus shall be deemed to mean and
include all such financial statements and schedules and other
information which are incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may
be, prior to the execution of the applicable Terms Agreement; and
all references in these Standard Provisions to amendments or
supplements to the Registration Statement, Prospectus, Disclosure
Package or preliminary prospectus shall be deemed to include the
filing (as opposed to furnishing) of any document under the
Exchange Act which is incorporated by reference in the Registration
Statement, Prospectus, Disclosure Package or preliminary
prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
For purposes of these Standard
Provisions:
“ 430B Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to
Rule 430B(e) or retroactively deemed to be a part of the
Registration Statement pursuant to Rule 430B(f).
“ 430C Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to
Rule 430C.
“ Act ” means the
Securities Act of 1933, as amended.
“Applicable
Time” means the
time and date so stated in the Terms Agreement.
“ Closing Date”
has the meaning defined in Section 2 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Effective Date
” of the Registration Statement relating to the Securities
means the time of the first contract of sale for the
Securities.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“General Use Issuer Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as
evidenced by its being so specified in a schedule to the Terms
Agreement.
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“Issuer Free Writing
Prospectus” means
any “issuer free writing prospectus,” as defined in
Rule 433, relating to the Securities in the form filed or
required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Limited Use Issuer Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is
not a General Use Issuer Free Writing Prospectus.
“ Prospectus ”
means the Statutory Prospectus that discloses the public offering
price, other 430B Information and other final terms of the
Securities and otherwise satisfies Section 10(a) of the
Act.
“Registration
Statement” at any
particular time means such registration statement in the form then
filed with the Commission, including any amendment thereto, any
document incorporated by reference therein and all
430B Information and all 430C Information with respect to such
registration statement, that in any case has not been superseded or
modified. “ Registration Statement ” without
reference to a time means the Registration Statement as of the
Effective Date. For purposes of this definition,
430B Information shall be considered to be included in the
Registration Statement as of the time specified in
Rule 430B.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“Statutory
Prospectus” with
reference to any particular time means the prospectus relating to
the Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information
and all 430C Information with respect to the Registration
Statement. For purposes of the foregoing definition,
430B Information shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of
prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not
retroactively.
“Terms
Agreement” means
the Terms Agreement referred to in Section 2 relating to the
Securities.
“Trust Indenture
Act ” means the
Trust Indenture Act of 1939, as amended.
Unless otherwise specified, a
reference to a “ rule ” is to the indicated rule
under the Act.
Section 1 . Representations
and Warranties. The Company represents and warrants to each of
you, and to each Underwriter named in a Terms Agreement as of the
date thereof as follows:
(a) The Company has filed with the
Commission a registration statement on Form S-3
(No. 333-137183), including a related prospectus or
prospectuses, covering the registration of the Securities under the
Act, which has become effective.
(b) The Registration Statement
constitutes an “ automatic shelf registration
statement ” (as defined in Rule 405 of the Act) filed
within three years of the date of the applicable Terms
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Agreement, and the Company is a “
well-known seasoned issuer ” (as defined in Rule 405
of the Act). The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) objecting to use of the
automatic shelf registration statement form. If at any time when
any Securities remain unsold by the Underwriters the Company
receives from the Commission a notice pursuant to
Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will
(i) promptly notify the Representatives, (ii) promptly
file a new registration statement or post-effective amendment on
the proper form relating to the Securities, in a form reasonably
satisfactory to the Representatives, (iii) use its reasonable
best efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable, and
(iv) promptly notify the Representatives of such
effectiveness. The Company will take all other action reasonably
necessary or appropriate to permit the public offering and sale of
the Securities to continue as contemplated in the registration
statement that was the subject of the Rule 401(g)(2) notice or
for which the Company has otherwise become ineligible. References
herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may
be. The Company has paid or shall pay the required Commission
filing fees relating to the 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).
(c) (i) At the time
of filing the Registration and (ii) at the date of the Terms
Agreement, the Company was not and is not
an “ineligible issuer,” as defined in
Rule 405.
(d) (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) on
the Effective Date relating to the Securities and (D) on the
Closing Date, the Registration Statement conformed and will conform
in all material respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations and did not and will
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 (ii) (A) on
its date, (B) at the time of filing the Prospectus pursuant to
Rule 424(b) and (C) on the Closing Date, the Prospectus
will conform in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and
will not 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 under which they were
made, not misleading. The preceding sentence does not apply to
(i) statements in or omissions from any such document made in
reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if
any, specifically for use therein, it being understood and agreed
that the only such information is that described as such in the
Terms Agreement or (ii) that part of the Registration
Statement that will constitute the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the
Trustee under the Indenture (the “ Form T-1
”).
(e) As of the Applicable Time,
neither (i) the General Use Issuer Free Writing Prospectus(es)
issued at or prior to the Applicable Time, the Statutory Prospectus
identified in a schedule to the Terms Agreement, and any other
documents listed or disclosures stated in a schedule to the Terms
Agreement to be included in the Disclosure Package, all considered
together (collectively, the “Disclosure Package”
), nor (ii) any individual Limited Use Issuer Free Writing
Prospectus, when considered together with the Disclosure Package,
included any
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untrue statement of a material fact or omitted
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. The preceding sentences do not
apply to statements in or omissions from any Statutory Prospectus
or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in the Terms
Agreement.
(f) Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or
notifies the Representatives as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained in
the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time,
not misleading, (i) the Company has promptly notified or will
promptly notify the Representatives and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. The preceding sentences do not apply
to statements in or omissions from any Issuer Free Writing
Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such
in the Terms Agreement.
(g) The accountants who certified
the financial statements of the Company included or incorporated in
the Registration Statement, the Prospectus and the Disclosure
Package are independent public accountants as required by the Act
and the rules and regulations thereunder.
(h) The consolidated financial
statements of the Company together with related schedules and
notes, included or incorporated in the Registration Statement, the
Prospectus and the Disclosure Package present fairly the
consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations and
the changes in their financial position for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied
during the period, except as stated therein.
If applicable, the pro forma
financial information set forth or incorporated by reference in the
Registration Statement, the Prospectus and the Disclosure Package
is, in all material respects, fairly presented and prepared on a
basis consistent with the historical financial statements of the
Company and its subsidiaries, except to the extent stated therein,
and gives effect to assumptions used in the preparation thereof
which have been made on a reasonable basis and in good
faith.
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(i) The Company has established and
maintains disclosure controls and procedures (as such term in
defined in Rule 13a-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the chief executive officer and chief financial officer of
the Company by others within the Company or any subsidiary, and
such disclosure controls and procedures are reasonably effective to
perform the functions for which they were established subject to
the limitations of any such control system. The Company and each of
its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company’s
auditors and the audit committee of the board of directors of the
Company have been advised of: (A) any significant deficiencies
in the design or operation of internal controls which could
adversely affect the Company’s ability to record, process,
summarize, and report financial data; and (B) any fraud,
whether or not material, that involves management or other
employees who have a role in the Company’s internal controls;
any material weaknesses in internal controls have been identified
for the Company’s auditors; and since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses. The Company made available to
the Underwriters or their counsel for review true and complete
copies of all minutes or draft minutes of meetings, or resolutions
adopted by written consent, of the board of directors of the
Company and each significant subsidiary of the Company within the
meaning of Regulation S-X (each “ Significant
Subsidiary ”) and each committee of each such board in
the past three years, and all agendas for each such meeting for
which minutes or draft minutes do not exist.
(j) Except as described in the
Disclosure Package as of the Applicable Time, since the date of the
latest audited financial statements included or incorporated by
reference in the Disclosure Package, there has been no change, nor
any development or event involving a prospective change, in the
financial condition, results of operations, business, properties or
prospects of the Company and its subsidiaries, taken as a whole,
that is material and adverse (a “ Material Adverse
Change ”).
(k) Except as described in the
Disclosure Package as of the Applicable Time, since the date of the
latest audited financial statements included or incorporated by
reference in the Disclosure Package, no litigation or governmental
proceeding has been instituted or, to the knowledge of the Company,
threatened against the Company or any subsidiary which would
reasonably be expected to have any material adverse effect on the
financial condition, results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole (a
“ Material Adverse Effect ”).
(l) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware with the corporate
power and authority to
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own, lease and operate its properties and
conduct its business as described in the Prospectus and the
Disclosure Package; and the Company is duly qualified or licensed
to do business as a foreign corporation in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification or licensing,
except to the extent that the failure to be so qualified or
licensed or be in good standing would not have a Material Adverse
Effect.
(m) Each Significant Subsidiary is a
duly incorporated or formed and validly existing corporation,
partnership or limited liability company, as applicable, in good
standing under the laws of its jurisdiction of incorporation or
formation with full corporate, partnership or limited liability
company power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus
and the Disclosure Package. Each Significant Subsidiary is duly
qualified or licensed to do business as a foreign corporation,
partnership or limited liability company in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification or licensing,
except to the extent that the failure to be so qualified or
licensed or be in good standing would not have a Material Adverse
Effect. The issued and outstanding common stock or other equity
interests of each of the Significant Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable
and, except as disclosed in the Prospectus and the Disclosure
Package, are owned by the Company free and clear of any mortgages,
liens or similar encumbrances.
(n) Neither the Company nor any
Significant Subsidiary is (i) in violation of its certificate
of incorporation or bylaws or similar organizational documents,
(ii) in default in the performance or observance of any
obligation in any indenture, mortgage, evidence of indebtedness or
similar agreement or instrument to which it is a party or by which
it or any of its properties may be bound or (iii) in violation
of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for
any such default or violation that would not have a Material
Adverse Effect. The execution and delivery of the applicable Terms
Agreement, incorporating these Standard Provisions, and the
consummation of the transactions contemplated herein and therein
and the incurrence of the obligations herein and therein set forth,
have been or will be duly authorized by all necessary corporate
action and do not and will not, conflict with, or constitute or
result in a breach of or default under, the certificate of
incorporation or bylaws of the Company or, except for any such
conflict, breach or default which would not have a Material Adverse
Effect, any law, order, rule, regulation or court decree or any
bond, debenture, note or other evidence of indebtedness or any
material contract, lease, license, indenture, mortgage, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of their respective properties may be
bound; and the Company has full corporate power and authority to
issue and sell the Securities as contemplated by the applicable
Terms Agreement, including these Standard Provisions.
(o) No consent, approval,
authorization, order or qualification or registration of or with
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except for
(i) the registration of the offer and sale of the Securities
under the Act and such consents, approvals, authorizations, orders,
qualifications or registrations as may be required under the Blue
Sky or securities laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters;
(ii) the qualification of the
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Indenture under the Trust Indenture Act; and
(iii) such consents, approvals, authorizations, orders,
qualifications or registrations, the failure of which to obtain or
make would not individually or in the aggregate, have a Material
Adverse Effect.
(p) The Company and each Significant
Subsidiary possess such valid franchises, certificates of
convenience and necessity, easements, rights of way, operating
rights, licenses, permits, consents, authorizations and orders of
governmental political subdivisions or regulatory authorities as,
in the opinion of the Company, are necessary to carry on the
respective businesses of each as described in the Prospectus and
the Disclosure Package, except where the failure to possess such
would not have a Material Adverse Effect.
(q) Except as disclosed in the
Disclosure Package and except for matters that would not,
individually or in the aggregate, have a Material Adverse
Effect: (i) the Company and its subsidiaries and their
respective properties and operations are and, during the relevant
time periods specified in all applicable statutes of limitations,
have been in compliance with all applicable laws, rules,
regulations, ordinances, codes, orders, and other legally
enforceable requirements relating to the prevention of pollution,
the preservation of environmental quality, the protection of
natural resources, or the remediation of environmental
contamination (collectively, “ Environmental Laws
”); (ii) the Company and its subsidiaries and their
respective properties and operations are not subject to any
proceeding, lawsuit, or other legal action or, to the
Company’s knowledge, any investigation or inquiry, by or
before any governmental authority pursuant to any Environmental
Law; (iii) the Company and its subsidiaries and their
respective properties and operations are not subject to any
liability (including any obligation to perform any investigatory,
corrective or remedial action that has been asserted) pursuant
to Environmental Laws in connection with any release into the
environment of, or any exposure of any person or property to, any
pollutant, contaminant, solid or hazardous waste, hazardous or
toxic substance, or any other material regulated under
Environmental Laws.
(r) Except as disclosed in the
Disclosure Package and the Prospectus, the Company and its
subsidiaries have (i) generally satisfactory title to their
oil and gas properties, title investigations having been carried
out by the Company in accordance with the practice in the oil and
gas industries in the areas in which the Company operates,
(ii) good and marketable title to all other real property
owned by them to the extent necessary to carry on their business
and (iii) good and marketable title to all personal property
owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Disclosure Package and the
Prospectus, the Company and its subsidiaries hold any leased real
or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to
be made thereof by them.
(s) (i) The oil and natural gas
reserve estimates of the Company and its subsidiaries, as of
December 31, 2006, 2007 and 2008 contained in the Disclosure
Package and the Prospectus are derived from reports by the Company
and reviewed by Miller and Lents, Ltd. or Netherland,
Sewell & Associates, Inc., as set forth and to the extent
indicated therein, and (ii) such estimates reasonably reflect
the oil and natural gas reserves of the Company and its
subsidiaries, as applicable, at the dates indicated therein and are
in accordance, in all material respects, with Commission guidelines
applied on a consistent basis throughout the periods
involved.
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(t) Each of Miller and Lents, Ltd.
and Netherland, Sewell & Associates, Inc. have represented
to the Company that they are, and the Company believes them to be,
independent petroleum engineers with respect to the Company and its
subsidiaries and for the periods set forth in the Disclosure
Package and the Prospectus.
(u) The applicable Terms Agreement,
incorporating these Standard Provisions, has been duly authorized,
executed and delivered by the Company.
(v) The Indenture has been duly
authorized by the Company and (assuming due authorization,
execution and delivery thereof by the Trustee) when executed and
delivered by the Company will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect relating to
creditors’ rights generally and general principles of equity
whether enforcement is sought at law or in equity, and the
Indenture has been qualified under the Trust Indenture
Act.
(w) The Securities have been duly
authorized for issuance and sale pursuant to the Terms Agreement
(or will have been so authorized prior to each issuance of
Securities) and, when issued, authenticated and delivered pursuant
to the provisions of the Terms Agreement and of the Indenture
against payment of the consideration therefor in accordance with
the Terms Agreement, the Securities will be valid and binding
obligations of the Company entitled to the benefits of the
Indenture and will be enforceable against the Company in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Securities and the Indenture
conform or will conform at the time of their issuance or execution,
as the case may be, in all material respects to all statements
relating thereto contained in the Prospectus and the Disclosure
Package. J
(x) The documents incorporated by
reference in the Registration Statement, the Disclosure Package and
the Prospectus, when they were filed with the Commission conformed
in all material respects to the requirements of the Exchange Act
and none of such documents contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement, the Disclosure Package and
the Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(y) Neither the Company nor any of
its subsidiaries is, and at no time during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of the Securities will any of them be,
and, after giving effect to the offering and sale of the Securities
and the application of the proceeds therefrom, none of them will
be, an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended.
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(z) The Company has an authorized
capitalization as set forth in the Disclosure Package and all of
the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable.
(aa) No litigation or governmental
proceeding has been instituted or, to the Company’s
knowledge, threatened, against the Company or any subsidiary which
would reasonably be expected to have a material adverse effect on
the Company’s ability to perform its obligations under and
consummate the transactions contemplated by the applicable Terms
Agreement (incorporating these Standard Provisions), the Indenture
and the Securities.
Section 2. Purchase and
Sale. The several commitments of the Underwriters to purchase,
and the obligation of the Company to sell, Securities pursuant to
any Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
Payment of the purchase price for,
and delivery of, any Firm Securities to be purchased by the
Underwriters shall be made at such time and place and on such date
as specified in the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 9 hereof) (each such
time and date being referred to herein as a “ Closing
Date ”). Payment shall be made to the Company in Federal
or other funds immediately available in New York City or by such
other means as may be specified in the Terms Agreement against
delivery to you for the respective accounts of the Underwriters of
the Firm Securities to be purchased by them.
If so specified in the applicable
Terms Agreement, the Underwriters shall have a one-time right to
purchase, severally and not jointly, up to the principal amount of
Additional Securities set forth in the applicable Terms Agreement
at the purchase price set forth in the applicable Terms Agreement
plus accrued interest, if any. Additional Securities may be
purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Securities. If any
Additional Securities are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the principal amount of
Additional Securities (subject to such adjustments to eliminate
fractions of $1,000 as you may determine) that bears the same
proportion to the total principal amount of Additional Securities
to be purchased as the principal amount of Firm Securities set
forth opposite its name in the applicable Terms Agreement bears to
the total principal amount of Firm Securities.
Payment of the purchase price for,
and delivery of, any Additional Securities to be purchased by the
Underwriters shall be made at such time (which may be the same as
the Closing Date but shall in no event be earlier than the Closing
Date nor later than ten business days after the giving of the
notice hereinafter referred to) and place as shall be designated in
a written notice from you to the Company of your determination, on
behalf of the Underwriters, to purchase the principal amount,
specified in such notice, of Additional Securities, or at such
other time, in any event not later than 30 days after the Closing
Date, as shall be designated in writing by the Underwriters. The
time and date of such payment are hereinafter referred to as the
“ Option Closing Date .” The notice of the
determination to exercise the option to purchase Additional
Securities and of the Option Closing Date may be given at any time
within 30 days after the date of the Terms Agreement.
10
Certificates evidencing the Firm
Securities and Additional Securities shall be in definitive, global
form and registered in the name of Cede & Co., as nominee
for The Depository Trust Company, unless you shall request
otherwise in writing not less than two full business days prior to
the Closing Date or the Option Closing Date, as the case may be.
The certificates evidencing the Firm Securities and Additional
Securities shall be delivered to you at the Closing Date or the
Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Securities to the
Underwriters duly paid, against payment of the purchase price
therefor.
Section 3 . Covenants of the
Company. The Company covenants with each of you, and with each
Underwriter participating in the applicable offering of Securities,
as follows with respect to such offering of Securities:
(a) As soon as practicable,
following the execution of the applicable Terms Agreement, the
Company will prepare the Prospectus setting forth the principal
amount of each series of the Securities covered thereby and their
terms not otherwise specified in the Indenture, the names of the
Underwriters participating in the offering and the principal amount
of each series of the Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which each series of the
Securities is to be purchased by the Underwriters from the Company,
the initial public offering price of each such series, if
applicable, the selling concession and reallowance applicable to
each such series, if any, any Additional Securities information and
such other information as you and the Company deem appropriate in
connection with the offering of the Securities. The Company will
transmit copies of the Prospectus to the Commission in compliance
with Rule 424 under the Act and will furnish to the Underwriters
named therein as many copies of the Prospectus and the Disclosure
Package as you shall reasonably request for the purposes
contemplated by the Act or the Rules and Regulations.
(b) If at any time when the
Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Act) is required by the Act to be delivered in
connection with sales of such Securities any event shall occur or
condition exist as a result of which it is necessary to further
amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein
not misleading in the light of circumstances existing at the time
it is delivered to a purchaser or if it shall be necessary at any
time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the Act or
the Rules and Regulations, the Company will, as soon as
practicable, prepare and file (if required) with the Commission
such amendment or supplement, whether by filing documents pursuant
to the Exchange Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration
Statement comply with such requirements.
(c) If the Disclosure Package is
being used to solicit offers to buy the Securities at a time when
the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Disclosure
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Package in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if any event shall occur or condition exist as a
result of which the Disclosure Package conflicts with the
information contained in the Registration Statement then on file,
or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Disclosure Package to comply
with applicable law, the Company will prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and
to any dealer upon request, either amendments or supplements to the
Disclosure Package so that the statements in the Disclosure Package
as so amended or supplemented will not contain any statement of
untrue material fact or omit to state a material fact necessary in
order to make the statements not misleading, in the light of the
circumstances when delivered to a prospective purchaser, or so that
the Disclosure Package, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Disclosure
Package, as amended or supplemented, will comply with applicable
law.
(d) The Company will make generally
available to its security holders as soon as practicable, but in
any event not later than 18 months after the date of the Terms
Agreement relating to such Securities, earnings statements of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the Rules and Regulations
(including, at the option of the Company, Rule 158 under the
Act).
(e) The Company, during the period
when the Prospectus is required by the Act to be delivered in
connection with sales of such Securities, will, except in the case
of reports filed pursuant to the Exchange Act, give you notice of
its intention to file any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the Disclosure
Package, whether pursuant to the Act or otherwise and will furnish
you with copies of any such amendment or supplement or other
documents proposed to be filed in a reasonable time for review by
the Underwriters in advance of filing.
(f) The Company, during the period
when the Prospectus is required by the Act to be delivered by you
in connection with sales of Securities, will notify each of you, as
soon as practicable, and confirm the notice in writing, of:
(i) the effectiveness of any amendment to the Registration
Statement; (ii) the mailing or delivery to the Commission for
filing of any supplement to the Prospectus or the Disclosure
Package, or any document to be filed pursuant to the Exchange Act;
(iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the
Disclosure Package; (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the Disclosure Package or for
additional information; and (v) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of the threat or initiation of any proceedings for
that purpose. The Company will make every reasonable effort to
prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(g) The Company will deliver to each
of you, as soon as practicable, as many conformed copies of the
Registration Statement (as originally filed) and of each amendment
thereto (including, except to the extent available on EDGAR,
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus and the
Disclosure Package pursuant to Item 12 of Form S-3 under the
Act) as you may reasonably request and will also deliver to you,
upon your request, a conformed copy of the Registration Statement
and each amendment thereto for each of the Underwriters.
12
(h) The Company will cooperate with
you to qualify the Securities for offering and sale under the
applicable Blue Sky or securities laws of such states and other
jurisdictions of the United States as you may designate, and will
cooperate in maintaining such qualifications in effect for as long
as may be required for the distribution of such Securities except
that the Company shall not be obligated to file any general consent
to service or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified. In
each jurisdiction in which such Securities or the sale thereof
shall have been qualified as above provided, the Company will
cooperate with you to make and file such statements and reports in
each year as may be required by the laws of such jurisdiction. The
Company will cooperate in the determination of the eligibility for
investment of the Securities under the laws of such jurisdictions
as you reasonably request.
(i) If so specified in the
applicable Terms Agreement, the Company will not, without your
prior written consent, offer, sell, contract to sell or otherwise
dispose of any securities of the Company designated in such Terms
Agreement during the lock-up period specified in the applicable
Terms Agreement, other than: (i) the Securities to be sold
hereunder; (ii) the Common Stock, if any, issuable upon
conversion of the Securities or conversion of any other existing
securities convertible into Common Stock or upon exercise of any
existing options to purchase Common Stock; (iii) options or
shares of Common Stock sold or issued pursuant to any employee
benefit plan or arrangement of the Company or any of its
subsidiaries existing on the date of the applicable Terms
Agreement; and (iv) Common Stock issuable in connection with
any acquisition.
Section 4 . Free Writing
Prospectuses .
(a) Issuer Free Writing
Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior
consent of the Company and the Representatives, it has not made and
will not make any offer relating to the 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 with the Commission.
Any such free writing prospectus consented to by the Company and
the Representatives is hereinafter referred to as a “
Permitted Free Writing Prospectus .” The Company
represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied
and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including
timely Commission filing where required, legending and record
keeping.
(b) Term Sheets.
If
