EXHIBIT 10.1
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PRICING AGREEMENT
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Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Underwriters
May 1, 2007
Ladies and Gentlemen:
Nexen Inc., a corporation organized under the federal laws of Canada
(the "Company"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement Standard Provisions attached hereto (the
"Underwriting Agreement Standard Provisions" and, together with this Agreement,
the "Underwriting Agreement"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement Standard Provisions is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Agreement, except that each representation
and warranty in Section 2 of the Underwriting Agreement Standard Provisions
that refers to the Prospectus or the General Disclosure Package shall be deemed
to be a representation and warranty as of the date of the Underwriting
Agreement in relation to the Prospectus or the General Disclosure Package (as
therein defined), and also a representation and warranty as of the date of this
Agreement in relation to the Prospectus or the General Disclosure Package
relating to the Designated Securities which are the subject of this Agreement.
Each reference to the Representative or the Representatives herein and in the
provisions of the Underwriting Agreement Standard Provisions so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement Standard Provisions are used herein
as therein defined.
The Canadian Prospectus relating to the Designated Securities, in the
form previously delivered to you, is now proposed to be filed with the ASC, and
the Prospectus relating to the Designated Securities, in the form previously
delivered to you, is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement Standard Provisions incorporated herein by reference,
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement Standard Provisions
incorporated herein by reference, shall constitute a binding agreement between
each of the several Underwriters and the Company.
[signature pages follow]
2
Very truly yours,
NEXEN INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
By: /s/ Una M. Power
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Name: Una M. Power
Title: Treasurer
Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ Nigel ▇. ▇. ▇▇▇▇
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Name: Nigel ▇. ▇. ▇▇▇▇
Title: Managing Director
For themselves and as Representatives of the
other Underwriters named in Schedule I hereto
SCHEDULE I
Principal Amount of Principal Amount of
5.65% Notes due 2017 6.40% Notes due 2037
Underwriter to be Purchased to be purchased
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Banc of America Securities LLC ..................... $ 42,500,000 $ 212,500,000
Citigroup Global Markets Inc. ...................... $ 42,500,000 $ 212,500,000
Deutsche Bank Securities Inc. ...................... $ 42,500,000 $ 212,500,000
BNP Paribas Securities Corp. ....................... $ 15,000,000 $ 75,000,000
HSBC Securities (USA) Inc. ......................... $ 15,000,000 $ 75,000,000
RBC Capital Markets Corporation .................... $ 15,000,000 $ 75,000,000
TD Securities (USA) LLC ............................ $ 13,750,000 $ 68,750,000
CIBC World Markets Corp. ........................... $ 11,875,000 $ 59,375,000
Scotia Capital (USA) Inc. .......................... $ 11,875,000 $ 59,375,000
Lazard Capital Markets LLC ......................... $ 8,750,000 $ 43,750,000
BMO Capital Markets Corp. .......................... $ 6,875,000 $ 34,375,000
Wachovia Capital Markets, LLC ...................... $ 6,875,000 $ 34,375,000
Fortis Securities LLC .............................. $ 6,250,000 $ 31,250,000
SG Americas Securities, LLC ........................ $ 6,250,000 $ 31,250,000
Daiwa Securities America Inc. ...................... $ 2,500,000 $ 12,500,000
▇▇▇▇▇▇▇▇▇▇ Securities Inc. ......................... $ 2,500,000 $ 12,500,000
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Total ............................ $ 250,000,000 $1,250,000,000
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SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
(A) 5.650% Notes due 2017 and (B) 6.400% Notes due 2037
AGGREGATE PRINCIPAL AMOUNT OF DESIGNATED SECURITIES:
(A) U.S.$250,000,000 of 5.650% Notes due 2017 and (B) U.S.$1,250,000,000
of 6.400% Notes due 2037
PRICE TO PUBLIC:
(A) 99.680% of the principal amount of the 5.650% Notes due 2017, plus
accrued interest from May 4, 2007 if settlement occurs after that date.
(B) 99.560% of the principal amount of the 6.400% Notes due 2037, plus
accrued interest from May 4, 2007 if settlement occurs after that date.
UNDERWRITING COMMISSION:
(A) 0.650% of the principal amount of the 5.650% Notes due 2017.
(B) 0.875% of the principal amount of the 6.400% Notes due 2037.
PROCEEDS TO THE COMPANY:
(A) 99.030% of the principal amount of the 5.650% Notes due 2017, plus
accrued interest from May 4, 2007 if settlement occurs after that date.
(B) 98.685% of the principal amount of the 6.400% Notes due 2037, plus
accrued interest from May 4, 2007 if settlement occurs after that date.
REGISTRATION STATEMENT FILE NUMBERS:
333-125019
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds
TIME OF DELIVERY OF DESIGNATED SECURITIES:
9:00 a.m. (New York City time) on May 4, 2007
APPLICABLE TIME:
4:45 pm (New York City time) on the date of this Pricing Agreement or such
other time as agreed by the Company and the Representatives.
INDENTURE:
Indenture, to be dated as of May 4, 2007, between the Company and Deutsche
Bank Trust Company Americas, as trustee (the "Trustee").
MATURITY:
(A) May 15, 2017 for 5.650% Notes due 2017 and (B) May 15, 2037 for 6.400%
Notes due 2037
INTEREST RATE:
(A) 5.650% per annum for 5.650% Notes due 2017 and (B) 6.400% per annum
for 6.400% Notes due 2037.
INTEREST PAYMENT DATES:
May 15 and November 15 of each year, beginning November 15, 2007.
REGULAR RECORD DATES:
May 1 and November 1 immediately preceding each Interest Payment Date
INTEREST ACCRUES FROM:
May 4, 2007
REDEMPTION PROVISIONS:
The Designated Securities will be redeemable at any time in whole, or from
time to time in part, at the option of the Company, at a "make-whole"
redemption price equal to the greater of (i) 100% of the principal amount
of the Designated Securities to be redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and
interest thereon (exclusive of interest accrued to the date of redemption)
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate,
plus 20 basis points and 35 basis points, for the 5.650% notes due 2017
and 6.400% notes due 2037, respectively, plus in each case accrued
interest to the date of redemption; provided that installments of interest
on Designated Securities which are due and payable on any date on or prior
to a redemption date will be payable to the registered holders of such
Designated Securities (or one or more predecessor Designated Securities),
registered as such as of the close of business on the relevant record
dates.
If notice has been given as provided in the Indenture and funds for the
redemption of any Designated Securities called for redemption shall have
been made available on the redemption date referred to in such notice,
such Designated Securities will cease to bear interest on the date fixed
for such redemption specified in such notice and the only right of the
holders of the Designated Securities will be to receive payment of the
redemption price plus accrued interest to the redemption date.
2
Notice of any optional redemption of any Designated Securities will be
given to holders at their addresses, as shown in the security register for
the Designated Securities, not more than 60 nor less than 30 days prior to
the date fixed for redemption. The notice of redemption will specify,
among other items, the redemption price and the principal amount of the
Designated Securities held by such holder to be redeemed.
SINKING FUND PROVISIONS:
None
LISTING REQUIREMENTS:
None
CLOSING LOCATION:
The Closing for the Designated Securities will occur at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇
ADDITIONAL REPRESENTATIONS AND WARRANTIES:
None
ADDITIONAL CLOSING CONDITIONS:
None
ADDITIONAL DOCUMENTS INCORPORATED BY REFERENCE:
None
OTHER TERMS:
Each Underwriter agrees that it will not, directly or indirectly, offer,
sell or deliver in Canada or to any resident of Canada in contravention of
the securities laws of any province or territory of Canada any Notes
purchased by it, and agrees that any selling agreement or similar
agreement with respect to the Notes will require each dealer or other
party thereto to make an agreement to the same effect.
3
SCHEDULE III
RESTRICTED SUBSIDIARIES
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Subsidiary Type of Entity Jurisdiction of Organization
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Nexen Petroleum Offshore U.S.A. Inc. Corporation Delaware
Nexen Petroleum U.S.A. Inc. Corporation Delaware
Nexen Marketing General Partnership Alberta
Nexen Petroleum U.K. Limited Corporation United Kingdom
Nexen Petroleum International Co. Unlimited Liability Corporation Nova Scotia
MATERIAL SUBSIDIARIES
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Subsidiary Type of Entity Jurisdiction of Organization
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All of the Restricted Subsidiaries, plus:
Canadian Nexen Petroleum Yemen ("CNPY") General Partnership Alberta
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333-125019
May 1, 2007
FINAL TERM SHEET
NEXEN INC.
5.65% NOTES DUE 2017
Issuer: Nexen Inc.
Anticipated Ratings (▇▇▇▇▇'▇/S&P/DBRS): Baa2 (Stable) / BBB- (Positive) / BBB (Stable)
Format: SEC Registered
Pricing Date: May 1, 2007
Settlement Date: May 4, 2007
Maturity Date: May 15, 2017
Principal Amount: $250,000,000
Benchmark: UST 4.625% due February 15, 2017
Benchmark Yield: 4.642%
Re-offer Spread: +105bps
Re-offer Yield to Maturity: 5.692%
Coupon: 5.65%
Public Offering Price: 99.68%
Optional Redemption: Make whole call UST+ 20 bps
Interest Payment Dates: May 15 and November 15, beginning November 15, 2007
Additional Information: As of April 30, 2007, our total long-term debt had increased
by $441 million to $5,383 million, and it is estimated our
cash and cash equivalents had increased by $580 million to
$690 million compared to March 31, 2007
Joint Bookrunning Managers: Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Senior Co-Managers: BNP Paribas Securities Corp.
HSBC Securities (USA) Inc.
RBC Capital Markets Corporation
Co-Managers: TD Securities (USA) LLC
CIBC World Markets Corp.
Scotia Capital (USA) Inc.
Lazard Capital Markets LLC
BMO Capital Markets Corp.
Wachovia Capital Markets, LLC
Fortis Securities LLC
SG Americas Securities, LLC
Daiwa Securities America Inc.
▇▇▇▇▇▇▇▇▇▇ Securities International Inc.
************************
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER
DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT
THE ISSUER AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING
▇▇▇▇▇ ON THE SEC WEB SITE AT ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU THE PROSPECTUS IF YOU REQUEST IT BY CALLING TOLL-FREE BANC OF AMERICA
SECURITIES LLC AT (▇▇▇) ▇▇▇-▇▇▇▇, CITIGROUP GLOBAL MARKETS INC. AT (877)
858-5407, OR DEUTSCHE BANK SECURITIES INC. AT (▇▇▇) ▇▇▇-▇▇▇▇.
Note: A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time
Filed Pursuant to Rule 433
Registration No. 333-125019
May 1, 2007
FINAL TERM SHEET
NEXEN INC.
6.40% NOTES DUE 2037
Issuer: Nexen Inc.
Anticipated Ratings (▇▇▇▇▇'▇/S&P/DBRS): Baa2 (Stable) / BBB- (Positive) / BBB (Stable)
Format: SEC Registered
Pricing Date: May 1, 2007
Settlement Date: May 4, 2007
Maturity Date: May 15, 2037
Principal Amount: $1,250,000,000
Benchmark: UST 4.500% due February 15, 2036
Benchmark Yield: 4.833%
Re-offer Spread: +160bps
Re-offer Yield to Maturity: 6.433%
Coupon: 6.40%
Public Offering Price: 99.56%
Optional Redemption: Make whole call UST+ 35 bps
Interest Payment Dates: May 15 and November 15, beginning November 15, 2007
Additional Information: As of April 30, 2007, our total long-term debt had increased
by $441 million to $5,383 million, and it is estimated our
cash and cash equivalents had increased by $580 million to
$690 million compared to March 31, 2007
Joint Bookrunning Managers: Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Senior Co-Managers: BNP Paribas Securities Corp.
HSBC Securities (USA) Inc.
RBC Capital Markets Corporation
Co-Managers: TD Securities (USA) LLC
CIBC World Markets Corp.
Scotia Capital (USA) Inc.
Lazard Capital Markets LLC
BMO Capital Markets Corp.
Wachovia Capital Markets, LLC
Fortis Securities LLC
SG Americas Securities, LLC
Daiwa Securities America Inc.
▇▇▇▇▇▇▇▇▇▇ Securities International Inc.
************************
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER
DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT
THE ISSUER AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING
▇▇▇▇▇ ON THE SEC WEB SITE AT ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU THE PROSPECTUS IF YOU REQUEST IT BY CALLING TOLL-FREE BANC OF AMERICA
SECURITIES LLC AT (▇▇▇) ▇▇▇-▇▇▇▇, CITIGROUP GLOBAL MARKETS INC. AT (877)
858-5407, OR DEUTSCHE BANK SECURITIES INC. AT (▇▇▇) ▇▇▇-▇▇▇▇.
Note: A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time.
NEXEN INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
To the Underwriters
named in the applicable Pricing Agreement
as hereinafter described
Ladies and Gentlemen:
From time to time, Nexen Inc., a corporation organized under the laws
of Canada (the "Company"), proposes to enter into one or more Pricing
Agreements (each, a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Designated Securities"). The term "Underwriters" also
refers to a single firm acting as sole underwriter with respect to the
Designated Securities specified in a Pricing Agreement.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture identified in such Pricing Agreement (the
"Indenture", which term, as used herein, shall include any supplemental
indenture or supplemental indentures referred to in the Pricing Agreement).
When used herein, the term "Trustee" shall refer to the trustee in respect of
the applicable Indenture.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. These Underwriting Agreement Standard Provisions (the
"Standard Provisions") shall not be construed as an obligation of the Company
to sell any Securities or as an obligation of any of the Underwriters or of the
- 2 -
Representatives to purchase any Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of
Designated Securities to be issued and sold, the initial public offering price
of such Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters, and the
principal amount of such Designated Securities to be purchased by each
Underwriter, and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture) the terms of such
Designated Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic or telecopied communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) The Company meets the requirements of the securities
legislation and the rules and regulations adopted thereunder, as
amended, in each of the provinces of Canada (the "Qualifying
Provinces") and the published policy statements of the securities
regulatory authority in each of the Qualifying Provinces (the "Canadian
Qualifying Authorities"), and, as applicable, of the Canadian
Securities Administrators, including National Instrument 44-101 Short
Form Prospectus Distributions ("NI 44-101") and Companion Policy
44-101CP and National Instrument 44-102 Shelf Distributions and
Companion Policy 44-102CP (collectively, the "Canadian Securities
Laws"), for use of a short form shelf prospectus with respect to the
Securities, has filed with the Canadian Qualifying Authorities,
designating the Alberta Securities Commission (the "ASC") as the
reviewing authority (the "Reviewing Authority"), a preliminary short
form base shelf prospectus and a final short form base shelf prospectus
in respect of the Securities, and has been issued a preliminary receipt
by the ASC on behalf of the Canadian Qualifying Authorities for such
preliminary short form base shelf prospectus and a final receipt by the
ASC on behalf of the Canadian Qualifying Authorities for such final
short form base shelf prospectus; no other document with respect to
such short form base shelf prospectus and no amendment thereto has been
filed or transmitted for filing with a Canadian Qualifying Authority;
and no order having the effect of preventing or suspending the use of
any prospectus or prospectus supplement relating to the Securities has
been issued and no proceeding for that purpose has been initiated or
threatened by a Canadian Qualifying Authority; such short form base
shelf prospectus, including any amendments to the form of prospectus
for which a final receipt was issued by the ASC on behalf of the
Canadian Qualifying Authorities, together with the documents
incorporated by reference therein, is hereinafter called the "Shelf
Prospectus", which in reference to the Registration Statement,
Preliminary Prospectus and Prospectus (each as defined below) shall
mean the Shelf Prospectus, modified as required or permitted by Form
- 3 -
F-10 ("Form F-10") under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the Securities and
Exchange Commission (the "Commission"), contained in the Registration
Statement, at the time the Registration Statement became effective. The
Shelf Prospectus, together with any related prospectus supplement,
relating to the Securities that was captioned "Subject to Completion"
is hereinafter called, together with the documents incorporated by
reference therein, the "Canadian Preliminary Prospectus"; the Shelf
Prospectus, together with the prospectus supplement, dated the date of
the Pricing Agreement, in relation to the relevant Designated
Securities in the form it was first filed with the Canadian Qualifying
Authority following the execution of the applicable Pricing Agreement
in accordance with Section 5(a) hereof, is hereinafter called, together
with any documents incorporated by reference therein as of the date of
such filing, the "Canadian Prospectus"; any reference herein to the
Shelf Prospectus, the Canadian Preliminary Prospectus or the Canadian
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein.
(b) The Company meets the requirements for use of Form F-10
with respect to the Securities and has filed a registration statement
on Form F-10, with the File No. specified in the applicable Pricing
Agreement, including the Shelf Prospectus, and has also filed with the
Commission an appointment of agent for service of process upon the
Company on Form F-X (a "Form F-X"); such registration statement (as
amended by any pre-effective amendments thereto) and any post-effective
amendments to such registration statement, have become effective in
such form; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission; the Shelf
Prospectus, together with any related prospectus supplement, relating
to the Securities that was captioned "Subject to Completion" that was
used after such effectiveness, is hereby called, together with the
documents incorporated by reference therein, a "Preliminary
Prospectus"; the Shelf Prospectus, together with the prospectus
supplement, dated the date of the Pricing Agreement, in relation to the
relevant Designated Securities in the form in which it is first filed
following the execution of the applicable Pricing Agreement with the
Commission pursuant to General Instruction II.L of Form F-10 ("General
Instruction II.L") in accordance with Section 5(a) hereof, is hereby
called, together with any documents incorporated by reference therein
as of the date of such filing, the "Prospectus"; the various parts of
the registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time the registration statement became
effective, each as amended at the time the registration statement
became effective, are hereinafter collectively called the "Registration
Statement"; any reference herein to the Registration Statement, the
Shelf Prospectus, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein.
(c) As of the Applicable Time, the only documents
incorporated or deemed to be incorporated by reference in the
Registration Statement, the Shelf Prospectus, the Preliminary
Prospectus, the Prospectus, the Canadian Preliminary Prospectus or the
Canadian Prospectus, are any documents listed under the caption
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"Documents Incorporated By Reference" in the Preliminary Prospectus,
the Prospectus, the Canadian Preliminary Prospectus and the Canadian
Prospectus, as the case may be. As of the Applicable Time and the Time
of Delivery (as hereinafter defined) with respect to the Designated
Securities no other documents will be incorporated or deemed to be
incorporated by reference in the Registration Statement, the Shelf
Prospectus, the Preliminary Prospectus, the Prospectus, the Canadian
Preliminary Prospectus or the Canadian Prospectus, except for the
documents, if any, listed in Schedule II to the Pricing Agreement under
the caption "Additional Documents Incorporated By Reference."
(d) The documents incorporated by reference in the
Registration Statement, the Shelf Prospectus, the Preliminary
Prospectus, the Prospectus, the Canadian Preliminary Prospectus, and
the Canadian Prospectus, as the case may be, when they were filed with
the Canadian Qualifying Authorities, were prepared in accordance, in
all material respects, with the disclosure requirements of the Canadian
Qualifying Authorities as interpreted and applied by the Canadian
Qualifying Authorities, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Canadian Prospectus, when such documents
are filed with the Canadian Qualifying Authorities, will comply, in all
material respects with the applicable requirements of the Canadian
Securities Laws as interpreted and applied by the Canadian Qualifying
Authorities, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; in the case of
documents incorporated by reference in the Registration Statement which
have been or hereafter are filed with the Commission pursuant to the
Exchange Act, such documents complied and will comply in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act
Regulations"), and none of such documents contained or will contain an
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) As of the Applicable Time, none of (i) the Preliminary
Prospectus, the Final Term Sheet (as defined in Section 5(a)) and any
other Issuer Free Writing Prospectus included on Schedule IV to the
applicable Pricing Agreement, all considered together (collectively,
the "General Disclosure Package"), or (ii) any Bona Fide Electronic
Road Show (as defined below), when considered together with the General
Disclosure Package, included an untrue statement of a material fact or
omitted 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, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Securities through the
applicable Representatives expressly for use therein.
- 5 -
As used in these Standard Provisions and the applicable Pricing
Agreement:
"Applicable Time" shall have the meaning given to such term in
the applicable Pricing Agreement.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 of the Securities Act Regulations
("Rule 433").
(f) Each of the Canadian Preliminary Prospectus and the
Canadian Prospectus complies and will comply, in all material respects,
with the applicable requirements of the Canadian Qualifying Authorities
as interpreted and applied by the Canadian Qualifying Authorities, and
the Preliminary Prospectus and the Prospectus comply and will comply,
in all material respects, with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
thereunder (the "Securities Act Regulations"), and the Prospectus and
the Canadian Prospectus do not and will not, as of their date, and will
not, as of the Time of Delivery, contain an 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, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the applicable
Representatives expressly for use therein.
(g) The Registration Statement and the Form F-X and any
amendments or supplements to the Registration Statement and the Form
F-X comply and will comply, in all material respects, with the
applicable requirements of the Securities Act and the Securities Act
Regulations and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder (the "Trust Indenture Act Regulations"), and do not and will
not, as of the date on which the Registration Statement first became
effective, as of the effective date of any post-effective amendment
thereto, and as of the date of any Pricing Agreement, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the applicable
Representatives expressly for use therein.
(h) None of the Company or any of the Company's
subsidiaries listed on Schedule III attached to the applicable Pricing
Agreement (the "Material Subsidiaries") has sustained, since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus, the Canadian Prospectus and the General
Disclosure Package, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, the Canadian Prospectus and the General Disclosure
Package, and since the respective dates as of which information is
given in the Prospectus, the Canadian Prospectus and the General
- 6 -
Disclosure Package, there has not been any change in the capital stock
or any increase in the long-term debt of the Company or any of its
subsidiaries (except the issuance of shares of capital stock upon the
reinvestment of dividends in compliance with the Company's dividend
reinvestment plan, upon the exercise of options held by directors and
employees of the Company pursuant to the Company's stock option plans
described in the Prospectus, the Canadian Prospectus and the General
Disclosure Package), nor has there been any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the Canadian Prospectus and the General
Disclosure Package. Since the respective dates as of which information
is given in the Prospectus, the Canadian Prospectus and the General
Disclosure Package, there have been no transactions entered into by the
Company or any of its subsidiaries, other than in the ordinary course
of business, which are material to the Company and its subsidiaries
considered as one enterprise. All of the Company's Restricted
Subsidiaries (as defined in the Prospectus, the Canadian Prospectus and
the General Disclosure Package) and Material Subsidiaries and their
respective jurisdictions of organization will be set forth in Schedule
III to the applicable Pricing Agreement. Schedule III to the applicable
Pricing Agreement will also accurately set forth whether each
Restricted Subsidiary and Material Subsidiary is a corporation, limited
partnership or general partnership.
(i) With the exception of defects in title that do not in
the aggregate materially and adversely affect the consolidated
operations of the Company and its subsidiaries, taken as a whole, each
of the Company and its subsidiaries has good title to its real and
personal property, with the Company and its Restricted Subsidiaries
holding such title free of any Security Interest other than Permitted
Encumbrances, as those terms "Security Interest" and "Permitted
Encumbrances" are defined in the Prospectus, the Canadian Prospectus
and the General Disclosure Package.
(j) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the CANADA BUSINESS
CORPORATIONS ACT (the "CBCA"), with all requisite corporate power and
authority to own and lease its properties and conduct its business as
described in the Prospectus, the Canadian Prospectus and the General
Disclosure Package, and has been duly qualified to carry on its
business and is in good standing under the laws of each other
jurisdiction in which it carries on a material portion of its business
or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and each Material
Subsidiary is either a corporation or a partnership (for purposes of
these Standard Provisions, the term "partnership" includes both general
partnerships and limited partnerships) and, if a corporation, has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and, if a
partnership, has been duly formed and is validly existing as a
partnership in good standing (if applicable) under the laws of the
jurisdiction of its formation; and each Material Subsidiary has been
duly qualified to carry on its business and is in good standing, if
applicable, under the laws of each other jurisdiction in which it
carries on a material portion of its business or is subject to no
material liability or disability by reason of the failure to be so
- 7 -
qualified in any such jurisdiction. Without limitation to the
foregoing, no Material Subsidiary which is organized under the laws of
Canada or any province thereof carries on a material portion of its
business in the United States or any state thereof or is subject to any
material liability or disability by reason of the failure to be duly
qualified to carry on its business or in good standing in the United
States or any state thereof, and no Material Subsidiary which is
organized under the laws of any state of the United States carries on a
material portion of its business in Canada or any province thereof or
is subject to any material liability or disability by reason of the
failure to be duly qualified to carry on its business or in good
standing in Canada or any province thereof; and the only states of the
United States in which any of the Material Subsidiaries carries on a
material portion of its business are the States of Texas and Louisiana
and the offshore waters of the States of Texas and Louisiana. As used
in these Standard Provisions, all references to "provinces" of Canada
shall include both provinces and territories.
(k) The Company has an authorized capitalization as set
forth in the Prospectus, the Canadian Prospectus and the General
Disclosure Package, and all of the issued shares of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of each Material Subsidiary
that is a corporation have been duly and validly authorized and issued
and are fully paid and non-assessable and such shares are owned,
directly or indirectly, by the Company, free and clear of all liens,
encumbrances, equities or claims; except as set forth in Schedule III
to the applicable Pricing Agreement, all of the issued and outstanding
partnership interests of each Material Subsidiary that is a partnership
have been duly and validly created and are owned, directly or
indirectly, by the Company free and clear of all liens, encumbrances,
equities or claims.
(l) The Securities have been duly authorized by the Company
and, when the Designated Securities are issued and delivered pursuant
to the Pricing Agreement with respect to such Designated Securities
against payment of the consideration set forth therein, the Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity, and will be
entitled to the benefits provided by the Indenture; the Indenture has
been duly authorized by the Company and, at the Time of Delivery for
such Designated Securities, the Indenture will constitute a valid and
legally binding obligation of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating
to or affecting creditors' rights and to general principles of equity;
and the Indenture conforms, and the Designated Securities will conform,
to the descriptions thereof contained in the Prospectus, the Canadian
Prospectus and the General Disclosure Package.
- 8 -
(m) The issue and sale of the Securities, and the
compliance by the Company with all of the provisions of the Securities,
the Indentures and any Pricing Agreement and the consummation of the
transactions herein and therein contemplated do not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or constitute a default under, any indenture,
mortgage, deed of trust, sale/leaseback agreement, loan agreement or
other similar financing agreement or instrument or other agreement or
instrument (or any guarantee of any of the foregoing) to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject which,
individually or in the aggregate, would be reasonably expected to have
a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, nor does
or will such action result in any violation of the provisions of the
articles or by-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body in Canada or the United States is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to the relevant Time
of Delivery, obtained under the Canadian Securities Laws, the
Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters.
(n) Neither the Company nor any of its subsidiaries is in
(i) violation of its articles or by-laws or other constating or
organizational documents, (ii) violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator, or other
authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable, or (iii) default in the
performance or observance of any obligation, agreement, covenant or
condition contained in (A) any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or its properties may be bound which violation or
default, as the case may be, individually or in the aggregate, would be
reasonably expected to have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, or (B), without limitation to the provisions of clause (A) of
this sentence, the Agreement for Petroleum Exploration and Production
(including any amendments or supplements thereto and any ancillary
agreements or instruments) regarding the Masila Block Development
Project in Yemen. The only subsidiary of the Company which is a party
- 9 -
to the agreement referred to in clause (B) of the preceding sentence is
CNPY (as defined in Schedule III attached to the applicable Pricing
Agreement).
(o) The statements and opinions set forth in (A) the
Prospectus, the Canadian Prospectus and the General Disclosure Package
under the captions "Enforceability of Civil Liabilities", "Description
of the Debt Securities", "Particular Terms of the Senior Debt
Securities", "Particular Terms of the Subordinated Debt Securities",
"Description of the Notes", "Certain Income Tax Considerations" and
"Certain Income Tax Considerations" (and under any similar captions),
(B) in Part II of the Registration Statement under the caption
"Indemnification", and (C) in the Company's most recent Annual Report
on Form 10-K under the captions "Business and Properties - Government
Regulations", "Business and Properties - Environmental Regulations" and
"Legal Proceedings" (or, if the Company has filed a Quarterly Report on
Form 10-Q since the filing of the Company's most recent Annual Report
on Form 10-K, in the Company's most recent Quarterly Report on Form
10-Q under the caption "Legal Proceedings") (and under any similar
captions), in each case insofar as such statements constitute summaries
of legal matters, legal proceedings, laws or regulations (or the
interpretation or administration of laws or regulations by any relevant
government authorities), or the Senior Debt Indenture, the Subordinated
Debt Indenture, the Designated Securities or other instruments and
agreements, are (in the case of the statements under the captions
referred to in clauses (A) and (B) above), and were on the date such
Annual Report on Form 10-K (or Quarterly Report on Form 10-Q, as
applicable) was filed with the Commission (in the case of the
statements under the captions referred to in clause (C) above),
accurate and fair in all material respects.
(p) Other than as set forth in the Prospectus, the Canadian
Prospectus and the General Disclosure Package, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate (i) have a material adverse effect on the performance of the
applicable Pricing Agreement or the consummation of any of the
transactions contemplated thereby or (ii) have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(q) The Company is not and, after giving effect to the
offering and sale of the Designated Securities and the application of
the proceeds thereof as described in the Prospectus, the Canadian
Prospectus and the General Disclosure Package, will not 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 (the "Investment Company Act"), or required to be
registered as an investment company under the Investment Company Act in
order to conduct its business as is presently conducted or proposed to
- 10 -
be conducted as described in the Prospectus, the Canadian Prospectus
and the General Disclosure Package or to consummate the transactions
contemplated by the applicable Pricing Agreement.
(r) Other than as set forth in the Prospectus, the Canadian
Prospectus and the General Disclosure Package, the Securities rank and
will rank equally in right of payment with all other unsecured and
unsubordinated indebtedness of the Company and senior in right of
payment to all unsecured subordinated indebtedness of the Company.
(s) The Indenture has been duly qualified under the Trust
Indenture Act and the Trustee has prepared and filed with the
Commission a Statement of Eligibility and Qualification on Form T-1 (a
"Form T-1") under the Trust Indenture Act in respect of the Indenture.
(t) The Company and its subsidiaries (i) are in compliance
with any and all applicable laws, regulations and other governmental
requirements relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(u) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities will not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(v) No withholding tax imposed under the federal laws of
Canada or the laws of any province or territory of Canada will be
payable in respect of (i) the payment or crediting of any discount,
commission or fee as contemplated by the applicable Pricing Agreement
to an underwriter that is either (A) not resident in Canada, but is
resident in the United States and is entitled to relief from certain
Canadian tax under the CANADA-UNITED STATES INCOME TAX CONVENTION, 1980
or (B) if a partnership, all the members of which are not resident in
Canada but are resident in the United States (and entitled to such
relief), in each case, for purposes of the INCOME TAX ACT (Canada) (a
"U.S. Underwriter") or (ii) any interest or deemed interest on the
- 11 -
resale of Designated Securities by a U.S. Underwriter to U.S.
residents; provided that such U.S. Underwriter deals at arm's length
with the Company and that any such discount, commission, fee or
interest is payable in respect of services rendered by such U.S.
Underwriter wholly outside of Canada that are performed by such U.S.
Underwriter in the ordinary course of business carried on by it that
includes the performance of such services for a fee and any such amount
is reasonable in the circumstances.
(w) No goods and services tax imposed under the federal
laws of Canada will be collectible by a U.S. Underwriter in respect of
the payment or crediting of any discount, commission or fee as
contemplated by the applicable Pricing Agreement to any U.S.
Underwriter, provided that any such discount, commission or fee is
payable in respect of services performed by such Underwriter wholly
outside of Canada.
(x) No stamp duty, registration or documentary taxes,
duties or similar charges are payable under the federal laws of Canada
or the laws of any province or territory of Canada in connection with
the creation, issuance, sale and delivery to the U.S. Underwriters of
the Designated Securities or the authorization, execution, delivery and
performance of any Pricing Agreement, or the Indenture or the resale of
Designated Securities by a U.S. Underwriter to U.S. residents.
(y) Each Pricing Agreement will be duly authorized,
executed and delivered by the Company.
(z) No subsidiary of the Company is a guarantor of any
borrowings or other indebtedness of the Company. No subsidiary of the
Company is a party to or bound by any instrument or agreement pursuant
to which it is or may be required to guarantee or cause another
subsidiary of the Company to guarantee any borrowings or other
indebtedness of the Company. The Company is not a party to or bound by
any instrument or agreement, other than as provided in Article 4 of the
fourth supplemental indenture dated as of July 2, 1997 to the Canadian
Indenture (as hereinafter defined) and other than as provided in
Article 4 of the First Supplemental Indenture (as hereinafter defined),
the Second Supplemental Indenture (as hereinafter defined), the Third
Supplemental Indenture (as hereinafter defined), the Fourth
Supplemental Indenture (as hereinafter defined), the Fifth Supplemental
Indenture (as hereinafter defined) and, in the event the Designated
Securities are Senior Debt Securities, the supplemental indenture
referred to in the Pricing Agreement, pursuant to which it is or may be
required to cause any of its subsidiaries to guarantee any borrowings
or other indebtedness of the Company. The term "Canadian Indenture"
means the Trust Indenture dated as of June 7, 1991 between the Company
and R-M Trust Company, as successor trustee, including all supplemental
indentures thereto (including, without limitation, the first, second,
third and fourth supplemental indentures thereto) and all other
amendments or supplements thereto. The terms "First Supplemental
Indenture", "Second Supplemental Indenture", "Third Supplemental
Indenture", "Fourth Supplemental Indenture" and "Fifth Supplemental
Indenture" mean, respectively, the First Supplemental Indenture, dated
as of April 28, 1998, the Second Supplemental Indenture, dated as of
- 12 -
February 4, 1999, the Third Supplemental Indenture dated as of March
11, 2002, the Fourth Supplemental Indenture dated as of November 20,
2003 and the Fifth Supplemental Indenture dated as of March 10, 2005 to
the Senior Debt Indenture.
(aa) The financial statements included and incorporated by
reference in the Prospectus, the Canadian Prospectus and the General
Disclosure Package, together in each case with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the results of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements comply as to form with the applicable accounting
requirements of the Canadian Securities Laws and have been prepared in
conformity with generally accepted accounting principles in Canada
applied on a consistent basis throughout the periods involved (except
as otherwise noted therein). The supporting schedules, if any, included
or incorporated by reference in the Prospectus, the Canadian Prospectus
and the General Disclosure Package present fairly in accordance with
generally accepted accounting principles in Canada, applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein), the information required to be stated therein and
comply as to form with the applicable accounting requirements of the
Canadian Securities Laws. The selected financial data (if any) and the
summary financial data (if any) included in the Prospectus, the
Canadian Prospectus and the General Disclosure Package, present fairly
the information shown therein and have been compiled on a basis
consistent with that of the Company's audited financial statements
included or incorporated by reference therein. The pro forma financial
statements and related notes thereto, if any, included or incorporated
by reference in the Prospectus, the Canadian Prospectus and the General
Disclosure Package present fairly the information shown therein, have
been prepared in accordance with the applicable requirements (if any)
of the Canadian Securities Laws with respect to pro forma financial
statements and have been prepared in accordance with the Commission's
rules and guidelines, if applicable, with respect to pro forma
financial statements, and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(bb) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by appropriate federal, state, local
and foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to possess any
such Governmental Licenses would not, singly or in the aggregate, have
a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, whether or not arising from
- 13 -
transactions in the ordinary course of business; all of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of any such Governmental Licenses or the failure
of any such Governmental Licenses to be in full force and effect would
not have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses, which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(cc) There are no contracts, documents or other materials
which are required to be described or referred to in the Registration
Statement, the Prospectus, the Canadian Prospectus and the General
Disclosure Package, or to be filed as exhibits to the Registration
Statement, which have not been so described, referred to or filed as
required.
(dd) The information set forth or incorporated by reference
in the Prospectus, the Canadian Prospectus and the General Disclosure
Package relating to the estimates by the Company of the proven oil and
gas reserves as at the dates specified have been reviewed and verified
by the Company and the reserve information has been prepared in
accordance with the U.S. Financial Accounting Standards Board Statement
No. 69 "Disclosure about Oil and Gas Producing Activities".
(ee) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in their
capacities as such, to comply with any provision applicable to the
Company of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the "Sarbanes Oxley Act"),
including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(ff) Deloitte & Touche LLP, who have certified certain
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 Registration Statement, the Prospectus, the Canadian
Prospectus and the General Disclosure Package, are independent public
accountants with respect to the Company within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder and of the Canadian Securities Laws and the CBCA.
(gg) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent
that could have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus, the
Canadian Prospectus and the General Disclosure Package.
- 14 -
(hh) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ii) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Designated Securities.
(jj) Other than the Material Subsidiaries listed in Schedule
III to the applicable Pricing Agreement, the Company has no significant
subsidiaries as defined by Rule 1-02 of Regulation S-X promulgated by
the Commission.
(kk) Any certificate signed by any officer of the Company
and delivered to the Representatives in connection with the offering of
any Designated Securities shall be deemed a representation and warranty
by the Company, as to matters covered thereby, to each Underwriter.
(ll) The Company is a "reporting issuer" or has equivalent
status in each of the Qualifying Provinces within the meaning of the
securities laws of such provinces and the Company is not in default of
any material requirement of the Canadian Securities Laws.
(mm) There has not been any reportable disagreement (within
the meaning of National Instrument 51-102 Continuous Disclosure
Obligations of the Canadian Securities Administrators) with the
auditors of the Company since the implementation of that Instrument.
(nn) Either (i) the Company has made available a "BONA FIDE
electronic road show," as defined in Rule 433, in compliance with Rule
433(d)(8)(ii) (the "Bona Fide Electronic Road Show") such that no
filing of any "road show" (as defined in Rule 433(h)) is or will be
required in connection with the offering of the Designated Securities,
or (ii) no filing of any "road show" (as defined in Rule 433(h)) is or
will be required in connection with the Designated Securities.
(oo) 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 Designated Securities did not, does not and will
not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the
Prospectus, the Canadian Prospectus and the General Disclosure Package.
- 15 -
(pp) At the time of filing the Registration Statement and
any post-effective amendments thereto, at the earliest time thereafter
that the Company or another offering participant made a BONA FIDE offer
(within the meaning of Rule 164(h)(2) of the Securities Act
Regulations) of the Designated Securities and as of the date of the
applicable Pricing Agreement, the Company was not and is not an
"ineligible issuer," as defined in Rule 405 of the Securities Act
Regulations.
(qq) The Company represents and agrees that, unless it
obtains the prior consent of the Representatives, and each Underwriter
of Designated Securities 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 Designated Securities
that would constitute an "issuer free writing prospectus," as defined
in Rule 433, or that would otherwise constitute a "free writing
prospectus," as defined in Rule 405, required to be filed with the
Commission, and the Company will not 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 such Underwriter that
such Underwriter otherwise would not have been required to file
thereunder; provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the information
contained in or consistent with the Issuer Free Writing Prospectus
included in Schedule IV to the applicable Pricing Agreement (including
the Final Term Sheet prepared and filed pursuant to this Agreement).
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 or 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 Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Designated Securities, the several Underwriters named in such Pricing
Agreement shall offer such Designated Securities for sale in the United States
upon the terms and conditions set forth in the Prospectus in relation to such
Designated Securities. In the event that the Pricing Agreement specifies that
the Designated Securities may be publicly offered and sold by the Underwriters
in Canada, the several Underwriters which have signed the certificate page in
the Canadian Prospectus shall offer such Designated Securities for sale in
Canada upon the terms and conditions set forth in the Canadian Prospectus.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor specified in
- 16 -
the Pricing Agreement in immediately available funds paid to the Company, all
in the manner and at the place and time and date specified in such Pricing
Agreement (unless postponed in accordance with Section 10 hereof) or at such
other place and time and date not later than ten business days after such date
as the Representatives and the Company may agree upon in writing, such time and
date being herein called a "Time of Delivery" for such Designated Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus and the Canadian Prospectus
in a form approved by the Representatives and to file (i) the Canadian
Prospectus with the Canadian Qualifying Authorities pursuant to the
Canadian Securities Laws, not later than the ASC's close of business on
the business day following the execution and delivery of the Pricing
Agreement for such Designated Securities or, if applicable, such
earlier time as may be required by the Canadian Qualifying Authorities
or the Canadian Securities Laws, and (ii) the Prospectus with the
Commission pursuant to General Instruction II.L not later than the
Commission's close of business on the next business day following such
filing with the ASC or, if applicable, such earlier time as may be
required by General Instruction II.L, any rules or regulations of the
Commission, the Canadian Qualifying Authorities or the Canadian
Securities Laws; to make no further amendment or any supplement to the
Registration Statement, the Canadian Prospectus, the Shelf Prospectus,
the Prospectus, any Issuer Free Writing Prospectus, after the execution
of the Pricing Agreement relating to such Designated Securities and
prior to the completion of the distribution of such Designated
Securities by the Underwriters that shall be disapproved by the
Representatives for such Designated Securities (acting reasonably)
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and to furnish the Representatives and the Underwriters with
copies thereof; to file promptly with the Canadian Qualifying
Authorities all documents required to be filed by the Company with the
Canadian Qualifying Authorities that are deemed to be incorporated by
reference into the Canadian Prospectus and with the Commission all
reports and any definitive proxy or information statements required to
be filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act, in each case for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
of the Securities Act ("Rule 173(a)")) is required in connection with
the offering or sale of such Designated Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, (i) of the time when any amendment to the Shelf
Prospectus or Registration Statement has been filed or becomes
effective or any Preliminary Prospectus, Prospectus, Canadian
Preliminary Prospectus, Canadian Prospectus or Issuer Free Writing
Prospectus has been filed with the Canadian Qualifying Authorities or
the Commission, as applicable, (ii) of the issuance by the Canadian
Qualifying Authorities or the Commission of any stop order or of any
order preventing or suspending the use of the Shelf Prospectus or the
Registration Statement or any prospectus or prospectus supplement
relating to the Designated Securities, (iii) of the suspension of the
qualification of such Designated Securities for offering or sale in any
jurisdiction, (iv) of the initiation or threatening of any proceeding
for any of the foregoing purposes, and (v) of any request by the
- 17 -
Canadian Qualifying Authorities or the Commission for the amending or
supplementing of the Shelf Prospectus, the Registration Statement, the
Preliminary Prospectus, the Prospectus, the Canadian Preliminary
Prospectus, the Canadian Prospectus or any Issuer Free Writing
Prospectus, or for additional information relating to the Securities,
the Shelf Prospectus, the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Canadian Preliminary Prospectus, the
Canadian Prospectus or any Issuer Free Writing Prospectus; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of the Shelf Prospectus or the
Registration Statement or any prospectus or prospectus supplement
relating to the Designated Securities or suspending any such
qualification, to use its best efforts to obtain the withdrawal of such
order as promptly as possible; to the extent the applicable Pricing
Agreement does not contemplate the public offer and sale in Canada of
the Designated Securities by the Underwriters party thereto, all
references above in this paragraph (a) to the "Canadian Qualifying
Authorities" shall be deemed to refer to the Reviewing Authority; to
prepare a final term sheet (the "Final Term Sheet") reflecting the
final terms of the Designated Securities, in form and substance
satisfactory to the Representatives, and file such Final Term Sheet
with the Commission as an "issuer free writing prospectus" pursuant to
Rule 433 prior to the close of business two business days after the
date hereof; provided that the Company shall furnish the
Representatives with copies of any such Final Term Sheet a reasonable
amount of time prior to such proposed filing and will not use or file
any such document to which the Representatives or counsel to the
Underwriters shall reasonably object; 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 contained in the
Registration Statement, the Prospectus, the Canadian Prospectus and the
General Disclosure Package or included or 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, the Company will promptly notify the Representatives and
will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities for offering and sale under the securities laws of such
jurisdictions in the United States as the Representatives may request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Designated Securities;
(c) To furnish the Underwriters with copies of any
Preliminary Prospectus, Prospectus, Canadian Preliminary Prospectus,
Canadian Prospectus and Issuer Free Writing Prospectus in such
quantities as the Representatives may from time to time reasonably
request; and, if the delivery of a prospectus is required (including in
circumstances where such requirement can be satisfied pursuant to Rule
172) with respect to any Designated Securities at any time up to the
expiration of nine months after the date of the Pricing Agreement
- 18 -
relating to and in connection with the offering or sale of such
Designated Securities and if at such time any event shall have occurred
as a result of which the Prospectus as amended or supplemented or the
Canadian Prospectus as amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Shelf Prospectus, the Registration Statement, the
Prospectus or the Canadian Prospectus or to file under the Canadian
Securities Laws or the Exchange Act any document incorporated by
reference in the Shelf Prospectus, the Registration Statement, the
Prospectus or the Canadian Prospectus in order to comply with the
Canadian Securities Laws, the Exchange Act, the Securities Act or the
Trust Indenture Act, to notify the Representatives as promptly as
possible by telephone (confirmed in writing), and as promptly as
possible, to file such document, subject to Section 5(a) hereof, and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of such amendment, which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Designated Securities at any time nine months or
more after the date of the Pricing Agreement relating to such
Designated Securities, upon the request of the Representatives but at
the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representatives may request of an
amended or supplemented prospectus which shall comply with the
provisions of this paragraph;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than 15 months after
the "effective date" of the Registration Statement (as defined in Rule
158(c) under the Securities Act), an earnings statement of the Company
and its subsidiaries on a consolidated basis (which need not be
audited) complying with Section 11(a) of the Securities Act and the
Securities Act Regulations (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for any Designated Securities and continuing to and
including the Time of Delivery for such Designated Securities, the
Company will not, without prior written consent of the Representatives,
directly or indirectly offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any Designated Securities or substantially
similar securities, or any securities convertible into or exchangeable
into or exercisable for any of the foregoing, or file a registration
statement under the Securities Act or a prospectus with any securities
or regulatory authority in Canada with respect to any of the foregoing
(except as contemplated by the applicable Pricing Agreement);
(f) To furnish to the Representatives, at the oral or
written request of the Representatives to the Company, as soon as
practicable after the end of each fiscal year an annual report
- 19 -
(including a balance sheet and statements of income, shareholders'
equity and cash flows of the Company and its subsidiaries on a
consolidated basis certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters
of each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), an interim report
containing the consolidated financial statements (which may be
unaudited) of the Company and its subsidiaries for such quarter in
reasonable detail and all other documents specified in the Indenture;
(g) To furnish to the Representatives, at the oral or
written request of the Representatives to the Company, (i) copies of
all reports or other communications (financial or other) furnished to
the Company's shareholders, (ii) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission, the Canadian Qualifying Authorities or any national
securities exchange on which the Securities or any class of securities
of the Company are listed and (iii) such additional publicly available
information in a format so made available concerning the business and
financial condition of the Company as the Representatives may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission); and
(h) To use the net proceeds received by it from the sale of
the Designated Securities pursuant to the applicable Pricing Agreement
in the manner specified in the Prospectus, the Canadian Prospectus and
the General Disclosure Package under the caption "Use of Proceeds" (or
under any similar caption).
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the filing with respect to the Securities under the Canadian
Securities Laws and the registration of the Securities under the Securities Act
and all other expenses in connection with the preparation, printing and filing
of the Shelf Prospectus, the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Canadian Preliminary Prospectus, the Canadian
Prospectus and amendments and supplements thereto and any Issuer Free Writing
Prospectus and the mailing and delivering of copies thereof to the Underwriters
and dealers; (ii) the cost of printing or reproducing any agreement among
Underwriters, these Standard Provisions, any Pricing Agreement, the Senior Debt
Indenture, the Subordinated Debt Indenture, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters up to a maximum aggregate amount of $12,500 (U.S.)
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
- 20 -
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements of counsel for any Trustee in connection with the Indenture
or the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section and Sections 8, 9 and 13 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees and disbursements
of their counsel, transfer taxes on resale of any of the Securities by them,
and any advertising expenses connected with any offers they may make.
7. The several obligations of the Underwriters to purchase
Designated Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the discretion of the Representatives, to the
condition that all representations and warranties and other statements of the
Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the date of such Pricing Agreement
and at and as of the Time of Delivery for such Designated Securities, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder to be performed on or prior to such Time of Delivery, and
the following additional conditions:
(a) The Canadian Prospectus shall have been filed with the
Canadian Qualifying Authorities pursuant to the applicable rules and
regulations of the Canadian Securities Laws within the applicable time
period prescribed for such filing thereunder and the Prospectus shall
have been filed with the Commission pursuant to General Instruction
II.L within the applicable time period prescribed for such filing and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement, the Shelf Prospectus or
any part thereof or having the effect of preventing or suspending the
use of any prospectus or prospectus supplement relating to the
Securities shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission or any
Canadian Qualifying Authority; no order having the effect of preventing
or suspending the use of any prospectus or prospectus supplement
relating to the Securities shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by any Canadian
Qualifying Authority; and all requests for additional information on
the part of the Commission or any Canadian Qualifying Authority shall
have been complied with to the reasonable satisfaction of the
Representatives; to the extent the applicable Pricing Agreement does
not contemplate the public offer and sale in Canada of the Designated
Securities by the Underwriters party thereto, all references above in
this paragraph (a) to the "Canadian Qualifying Authorities" shall be
deemed to refer to the Reviewing Authority;
(b) Shearman & Sterling LLP, United States counsel for the
Underwriters, and, to the extent specified in the applicable Pricing
Agreement, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the
Underwriters, shall have furnished to the Representatives such opinion
or opinions, dated the Time of Delivery for such Designated Securities,
with respect to the validity of the Indenture, the Designated
Securities, the Registration Statement, the Shelf Prospectus, the
- 21 -
Prospectus, the Canadian Prospectus and the General Disclosure Package,
and other related matters as the Representatives may reasonably
request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon
such matters;
(c) The General Counsel of the Company shall have furnished
to the Representatives his written opinion, dated the Time of Delivery
for such Designated Securities in form and substance satisfactory to
the Representatives, to the effect that:
(i) All of the issued shares of the Company have
been duly and validly authorized and issued and are fully paid
and non-assessable; all of the issued shares of each Canadian
Subsidiary (as defined below) that is a corporation have been
duly and validly authorized and issued and are fully paid and
non-assessable and such shares are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances,
equities or claims; and all of the partnership interests of
each Canadian Subsidiary that is a partnership (which term
includes both limited and general partnerships) have been duly
and validly created and are owned directly or indirectly by the
Company (except as set forth in Schedule III attached to the
applicable Pricing Agreement), free and clear of all liens,
encumbrances, equity or claims. As used in these Standard
Provisions, the term "Canadian Subsidiary" means each Material
Subsidiary that is organized under the laws of Canada or any
province or territory thereof and CNPY (as defined in Schedule
III attached to the applicable Pricing Agreement); and
(ii) The statements in the Company's most recent
Annual Report on Form 10-K under the captions "Business and
Properties--Government Regulations", "Business and
Properties--Environmental Regulations" and "Legal Proceedings"
(or, if the Company has filed a Quarterly Report on Form 10-Q
since the filing of the Company's most recent Annual Report on
Form 10-K, in the Company's most recent Quarterly Report on
Form 10-Q under the caption "Legal Proceedings" ) (and under
any similar captions), in each case insofar as such statements
constitute summaries of legal matters, legal proceedings, laws
or regulations, or instruments or agreements, were, on the date
such Annual Report on Form 10-K (or Quarterly Report on Form
10-Q, as applicable) was filed with the Commission, accurate,
complete and fair in all material respects.
In rendering such opinion, such counsel may state that he
expresses no opinion as to matters governed by laws other than the
federal laws of Canada and the laws of the Province of Alberta. As to
matters of law, other than the laws of the Province of Alberta and the
federal laws of Canada, such counsel may rely upon the opinions of
local counsel reasonably satisfactory to the Representatives, in which
case the opinion shall state that he believes that both he and the
Representatives are justified in so relying. In the event that such
counsel shall, in rendering such opinion, rely on one or more opinions
of local counsel, each such opinion of local counsel shall be dated the
Time of Delivery, shall either be addressed to the Underwriters or
shall expressly state that the Underwriters may rely upon such opinion
as if it were addressed to the Underwriters, shall be delivered to the
Representatives at the Time of Delivery and shall otherwise be
- 22 -
satisfactory in form and substance to the Representatives. In rendering
such opinion, such counsel may state that he has relied as to factual
matters, to the extent he deems appropriate, on certificates of public
officials and officers of the Company.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel for the Company,
shall have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
CBCA, with all requisite corporate power and authority to own
and lease its properties and conduct its business as described
in the Prospectus, the Canadian Prospectus and the General
Disclosure Package and to execute, deliver and perform its
obligations under these Standard Provisions, the applicable
Pricing Agreement, the Designated Securities and the Indenture;
(ii) The Company has an authorized share
capitalization as set forth in the Prospectus and in the
General Disclosure Package;
(iii) The Company is qualified as an extra provincial
corporation to carry on business under the laws of each
Canadian jurisdiction in which it conducts a material portion
of its business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall state
that they believe that both the Representatives and they are
justified in relying upon such opinions and certificates);
(iv) Each Canadian Subsidiary that is a corporation
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation; each Canadian Subsidiary that is a
partnership has been duly formed and is validly existing as a
partnership in good standing (if applicable) under the laws of
its jurisdiction of formation; each Canadian Subsidiary is
qualified as an extra provincial company or partnership, as the
case may be, to carry on business under the laws of each
Canadian jurisdiction in which it conducts a material portion
of its business so as to require such qualification or is
subject to no material liability or disability by reason of the
failure to be so qualified; and all of the partnership
interests of each Canadian Subsidiary that is a partnership
(which term includes both limited and general partnerships)
organized under the laws of the Province of Saskatchewan have
been duly and validly created (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
- 23 -
counsel shall state that they believe that both the
Representatives and they are justified in relying upon such
opinions and certificates);
(v) To the best of such counsel's knowledge, and
other than as set forth in the Prospectus as amended and
supplemented and in the General Disclosure Package relating to
such Designated Securities, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) The Pricing Agreement with respect to the
Designated Securities has been duly authorized, executed and
delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered;
(viii) The Indenture has been duly authorized, and, to
the extent execution and delivery are governed by the laws of
Alberta and the federal laws of Canada applicable therein, has
been duly executed and delivered by the Company;
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, these Standard
Provisions and the Pricing Agreement and the consummation of
the transactions herein and therein contemplated do not and
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, (A) any Subject Agreement (as set out in a schedule
attached to such counsel's opinion) or (B) to the best of such
counsel's knowledge, any other contract, indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or
other financing agreement or other agreement or instrument (or
any guarantee of any of the foregoing) known to such counsel
(the documents referred to in this clause (B) being hereafter
called, collectively, the "Covered Agreements") to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject (except, solely in the case of Covered
Agreements, for such conflicts, breaches, violations or
defaults or liens, charges or encumbrances that would not,
individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not
- 24 -
arising from transactions in the ordinary course of business),
nor does or will such action result in any violation of the
provisions of the articles or by-laws of the Company, or the
constating documents, as applicable, of each Canadian
Subsidiary that is a partnership, or to the best of such
counsel's knowledge, of any other subsidiaries of the Company,
or any statute, rule or regulation of any court or governmental
agency or body of Canada or the Province of Alberta having
jurisdiction over the Company or any Material Subsidiary or any
of their properties or, to the best of such counsel's
knowledge, any order of any court or governmental agency or
body of Canada or the Province of Alberta having jurisdiction
over the Company or any Material Subsidiary or any of their
properties. In rendering such opinion, such counsel shall state
that, in the case of any Subject Agreement or Covered Agreement
which is governed by the laws of a jurisdiction other than
Alberta or Canada, such counsel has assumed that such Subject
Agreement or Covered Agreement, as the case may be, is governed
by the laws of Alberta;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of Canada or the Province of
Alberta is required for the issue and sale of the Designated
Securities or the consummation by the Company of the
transactions contemplated by these Standard Provisions, the
Pricing Agreement or the Indenture except such as have been
obtained;
(xi) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in violation
of its articles or by-laws or other constating or
organizational document or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any Subject Agreement or Covered Agreement which,
individually or in the aggregate, would have a material adverse
effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business;
(xii) The statements set forth in (A) the Prospectus,
the Canadian Prospectus and the General Disclosure Package
under the captions (as applicable) "Description of the Debt
Securities", "Particular Terms of the Senior Debt Securities",
"Particular Terms of the Subordinated Debt Securities",
"Description of the Notes", "Certain Income Tax
Information-Certain Canadian Federal Income Tax
Considerations", and "Enforceability of Civil Liabilities" (and
under any similar captions), (B) in Part II of the Registration
Statement under the caption "Indemnification", and (C) in the
Company's most recent Annual Report on Form 10-K under the
captions "Business and Properties--Environmental Regulations"
(and under any similar captions), in each case insofar as such
statements constitute summaries of legal matters, legal
proceedings, laws or regulations (or the interpretation or
administration of laws or regulations by any relevant
government authorities), or the Senior Debt Indenture, the
- 25 -
Subordinated Debt Indenture, the Designated Securities or other
instruments and agreements, are (in the case of the statements
under the captions referred to in clauses (A) and (B) above),
and were on the date such Annual Report on Form 10-K was filed
with the Commission (in the case of the statements under the
captions referred to in clause (C) above), accurate and fair in
all material respects; and the advice and opinions of such
counsel set forth in the Prospectus, Canadian Prospectus and
the General Disclosure Package are confirmed;
(xiii) In an action on a final and conclusive judgment
IN PERSONAM for a fixed sum of money of any New York State or
federal court sitting in The City of New York (a "New York
Court") that is not impeachable as void or voidable under the
law of the State of New York ("New York law"), a court of
competent jurisdiction in the Province of Alberta (an "Alberta
Court") would not refuse to recognize the jurisdiction of the
court rendering such judgment on the basis of process having
been served on the Authorized Agent (as hereinafter defined) as
the agent to receive process in the United States of America
appointed by the Company under the Indenture and these Standard
Provisions; under the laws of the Province of Alberta relating
to submission to jurisdiction, the Company has, pursuant to the
provisions of these Standard Provisions and the Indenture,
validly submitted to the non-exclusive personal jurisdiction of
any New York Court in any action arising out of or relating to
these Standard Provisions, any Pricing Agreement, the
Indenture, or the Designated Securities and has validly
appointed the Authorized Agent for the purposes described in
these Standard Provisions and the Indenture. Pursuant to
Section 17 of these Standard Provisions, the Company has
validly and irrevocably waived any sovereign immunity it has or
may hereafter acquire with respect to the matters set forth in
such Section 17 (insofar as the opinion set forth in this
paragraph shall concern these Standard Provisions, such counsel
shall state that they have assumed that the laws of the State
of New York (and the application thereof) are identical to the
laws of the Province of Alberta);
(xiv) If these Standard Provisions or the Pricing
Agreement were sought to be enforced in the Province of Alberta
in accordance with New York law, an Alberta Court would
recognize the choice of New York law and permit the enforcement
thereof and apply New York law in such enforcement proceeding,
provided that none of the provisions of these Standard
Provisions or such Pricing Agreement is contrary to public
policy, as that term is understood under the laws of the
Province of Alberta and the federal laws of Canada applicable
therein. To the best of such counsel's knowledge, there are no
reasons under present law for avoiding the choice of New York
law as the proper law governing these Standard Provisions and
the Pricing Agreement, provided that such choice is BONA FIDE
(in the sense that it was not made with a view to avoiding the
consequence of the laws of any other jurisdiction), such choice
of law is a valid choice of law, and in an action brought
before an Alberta Court, New York law would, to the extent
specifically pleaded and proved as a fact by expert evidence,
- 26 -
be recognized and applied by such Alberta Court to all issues
that, under conflict of laws rules of the Province of Alberta,
are to be determined in accordance with the proper or general
law of contract, except that any such court will not apply
those New York laws the application of which would be
inconsistent with "public policy," as such term is applied by
the Alberta courts; PROVIDED, HOWEVER, that in matters of
procedure, the laws of the Province of Alberta will be applied,
and an Alberta Court will retain discretion to decline to hear
such action if it is contrary to public policy, as that term is
understood under the laws of the Province of Alberta and the
federal laws of Canada applicable therein, for such court to do
so, or if such court is not the proper forum to hear such an
action or if concurrent proceedings are being brought
elsewhere. In the opinion of such counsel, there are no reasons
based on public policy, as that term is understood under the
laws of the Province of Alberta and the federal laws of Canada
applicable therein, for an Alberta Court not to enforce these
Standard Provisions or the Pricing Agreement or not to apply
New York law in such an enforcement proceeding;
(xv) The laws of the Province of Alberta and the
federal laws of Canada applicable therein permit an action to
be brought in an Alberta Court on a final and conclusive
judgment IN PERSONAM for a sum certain of a New York Court
respecting the enforcement of the Indenture, the Designated
Securities, these Standard Provisions and the Pricing Agreement
that is not impeachable as void or voidable under New York law
if: (A) the court rendering such judgment had jurisdiction, in
accordance with Alberta's conflict of laws rules, over the
judgment debtor as recognized by the courts of the Province of
Alberta (and submission by the Company to the jurisdiction of
the New York Courts pursuant to the Indenture and these
Standard Provisions is sufficient for this purpose) and the
judgment debtor was properly served in the action leading to
such judgment; (B) such judgment was not obtained by fraud or
in a manner contrary to natural justice and the enforcement
thereof would not be inconsistent with public policy, as such
term is understood under the laws of the Province of Alberta
and the federal laws of Canada applicable therein, or contrary
to any order made by the Attorney General of Canada under the
FOREIGN EXTRATERRITORIAL MEASURES ACT (Canada) or by the
Competition Tribunal under the COMPETITION ACT (Canada); (C)
the enforcement of such judgment does not constitute, directly
or indirectly, the enforcement of foreign revenue,
expropriation, penal or public laws; (D) no new admissible
evidence relevant to the action is discovered prior to the
rendering of the judgment by the Alberta Court; and (E) the
action in the foreign jurisdiction was brought within the
limitation period applicable under the laws of Alberta. Under
the CURRENCY ACT (Canada) a judgment by a court in any province
of Canada may only be awarded in Canadian currency. In the
opinion of such counsel, there are no reasons based on public
policy under the laws of the Province of Alberta or the federal
laws of Canada applicable therein for avoiding recognition of
judgments of a New York court under the Indenture, the
Designated Securities, these Standard Provisions or the Pricing
Agreement;
- 27 -
(xvi) The Shelf Prospectus has been duly approved by
the Board of Directors of the Company, and the Shelf Prospectus
and each amendment thereto has been duly executed on behalf of
the Company in accordance with the Canadian Securities Laws;
(xvii) The documents incorporated by reference in the
Shelf Prospectus, the Prospectus and the General Disclosure
Package, each as amended or supplemented (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they were filed
with the Canadian Qualifying Authorities, complied as to form,
in all material respects, with the requirements of the Canadian
Securities Laws as interpreted and applied by the Canadian
Qualifying Authorities; although such counsel is not passing
upon and does not assume any responsibility for the factual
accuracy, completeness or fairness of the statements contained
in any such incorporated documents (except as to those matters
and to the extent set forth in the opinions referred to in
subsection (xiii)(A) of this Section 7(d)), no facts have come
to their attention that have caused such counsel to believe
that any such incorporated documents (other than the financial
statements and related schedules and other financial data
therein, as to which such counsel need express no opinion),
when such documents were filed with the Canadian Qualifying
Authorities, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made
when such documents were so filed, not misleading;
(xviii) The Company has received a receipt from or on
behalf of the Canadian Qualifying Authorities for the Shelf
Prospectus and any amendments or supplements thereto filed
under the Canadian Securities Laws prior to such Time of
Delivery; to the best of such counsel's knowledge after due
inquiry, no order of any Canadian Qualifying Authority to cease
distribution of the Securities under the Shelf Prospectus or
any amendments or supplements thereto or having the effect of
preventing or suspending the use of any prospectus or
prospectus supplement relating to the Designated Securities has
been issued, and to the best of such counsel's knowledge no
proceedings for such purpose have been instituted or
threatened; the Shelf Prospectus and any further amendments and
supplements thereto made by the Company prior to such Time of
Delivery comply as to form, in all material respects, with the
requirements of the Canadian Securities Laws as interpreted and
applied by the Canadian Qualifying Authorities; the Shelf
Prospectus, as amended or supplemented has been duly filed with
the Canadian Qualifying Authorities within the time required by
applicable law;
(xix) There are no reports or other information that
in accordance with the requirements of the Canadian Securities
Laws must be made publicly available in connection with the
offering of the Designated Securities that have not been made
- 28 -
publicly available as required; there are no documents required
to be filed with the Canadian Qualifying Authorities or
otherwise under the Canadian Securities Laws in connection with
the Shelf Prospectus that have not been filed as required;
(xx) The Company has obtained an exemption under the
CBCA exempting the Indenture from the provisions of Part VIII
of the CBCA;
(xxi) No goods and services tax imposed under the
federal laws of Canada will be collectible by a U.S.
Underwriter in respect of the payment or crediting of any
discount, commission or fee as contemplated by these Standard
Provisions or the Pricing Agreement to any U.S. Underwriter,
provided that any such discount, commission or fee is payable
in respect of services performed by such Underwriter wholly
outside of Canada;
(xxii) No stamp duty, registration or documentary
taxes, duties or similar charges are payable under the federal
laws of Canada or the laws of the Province of Alberta in
connection with the creation, issuance, sale and delivery to
the U.S. Underwriters of the Designated Securities or the
authorization, execution, delivery and performance of these
Standard Provisions, any Pricing Agreement, or the Indenture or
the resale of Designated Securities by a U.S. Underwriter to
U.S. residents;
(xxiii) The Company is eligible to file a short form
shelf prospectus with the Canadian Qualifying Authorities;
(xxiv) The filing of the Canadian Preliminary
Prospectus and the Canadian Prospectus with the Reviewing
Authority has been duly approved and authorized by all
necessary action on the part of the Company; and
(xxv) The Company is a "reporting issuer" in Alberta
and is not included in a list of defaulting reporting issuers
maintained by the ASC.
In rendering such opinion, such counsel may state that they
express no opinion as to matters governed by laws other than the
federal laws of Canada and the laws of the Provinces of Alberta and
Ontario. As to matters of law, other than the laws of the Provinces of
Alberta and Ontario and the federal laws of Canada, such counsel may
rely upon the opinions of local counsel reasonably satisfactory to the
Representatives, in which case the opinion shall state that they
believe that both they and the Representatives are justified in so
relying. In the event that such counsel shall, in rendering such
opinion, rely on one or more opinions of local counsel, each such
opinion of local counsel shall be dated the Time of Delivery, shall
either be addressed to the Underwriters or shall expressly state that
the Underwriters may rely upon such opinion as if it were addressed to
the Underwriters, shall be delivered to the Representatives at the Time
of Delivery and shall otherwise be satisfactory in form and substance
to the Representatives. In rendering such opinion, such counsel may
state that they have relied as to factual matters, to the extent they
- 29 -
deem appropriate, on certificates of public officials and officers of
the Company. In addition to rendering the opinions set forth above,
such counsel shall also include a statement to the effect that such
counsel has participated in the preparation of the Shelf Prospectus,
the Prospectus, the Canadian Prospectus and the General Disclosure
Package and in conferences and telephone conversations with officers
and other representatives of the Company and with representatives of
the independent accountants for the Company, during which conferences
and telephone conversations the contents of the Prospectus, the
Canadian Prospectus and the General Disclosure Package (in each case
including the documents incorporated by reference therein) and related
matters were discussed and although such counsel has not independently
verified, and is not passing upon and does not assume any
responsibility for, the factual accuracy, completeness or fairness of
the statements contained in the Preliminary Prospectus, the Prospectus,
the Canadian Prospectus and the General Disclosure Package (except as
to those matters and to the extent set forth in the opinions referred
to in subsection (xiii) of this Section 7(d)), on the basis of the
foregoing, such counsel's work in connection with this matter did not
disclose any information that gave such counsel reason to believe (x)
as of the Applicable Time, the General Disclosure Package (other than
the financial statements, financial statement schedules and other
financial data included or incorporated by reference therein or omitted
therefrom or from those documents incorporated by reference and the
information derived from the reports of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates,
Inc., ▇▇▇▇▇ ▇▇▇▇▇ Company, L.P., Consent of ▇▇▇▇▇▇▇▇ & Associates
Consultants Ltd. and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ included or incorporated
by reference into the Disclosure Package upon their authority as
experts, as to which such counsel need express no such belief) included
an untrue statement of material fact or omitted 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 or (y) as
of the date of the Prospectus and as of the Time of Delivery, the
Prospectus and the Canadian Prospectus (other than the financial
statements, financial statement schedules and other financial data
included or incorporated by reference therein or omitted therefrom or
from those documents incorporated by reference and the information
derived from the reports of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, Inc., ▇▇▇▇▇
▇▇▇▇▇ Company, L.P., Consent of ▇▇▇▇▇▇▇▇ & Associates Consultants Ltd.
and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ included or incorporated by reference into
the Prospectus upon their authority as experts, as to which we express
no such belief), included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to the
Shelf Prospectus required to be filed with the Canadian Qualifying
Authorities or any documents of the character required to be
incorporated by reference into the Shelf Prospectus or filed with the
Canadian Qualifying Authorities which are not filed or incorporated by
reference as required.
(e) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United
States counsel for the Company, shall have furnished to the
Representatives their written opinion, dated the Time of Delivery, in
form and substance satisfactory to the Representatives, to the effect
that:
- 30 -
(i) Each Delaware subsidiary listed on Schedule III
of the applicable Pricing Agreement (individually, a "Delaware
Subsidiary" and collectively, the "Delaware Subsidiaries") that
is a corporation is duly incorporated, validly existing and in
good standing under the laws of Delaware. Each of the Delaware
Subsidiaries has all necessary corporate or partnership power
and authority to own and hold its respective properties and
conduct its respective businesses as described in the
Prospectus and the General Disclosure Package;
(ii) The Indenture complies with all applicable
provisions of the Trust Indenture Act; the Indenture has been
duly qualified under the Trust Indenture Act;
(iii) The statements in the Prospectus and the
General Disclosure Package under the captions (as applicable)
"Description of the Debt Securities", "Particular Terms of the
Senior Debt Securities", "Particular Terms of the Subordinated
Debt Securities", "Description of the Notes" and "Description
of the Subordinated Notes" in so much as such statements
constitute summaries of the Securities or the Indenture are
accurate and fair summaries of the matters stated therein;
(iv) The statements in the Prospectus and the
General Disclosure Package under the caption "Certain Income
Tax Information - Certain U.S. Federal Income Tax
Considerations", to the extent that they constitute summaries
of United States federal statutes, rules and regulations, or
portions thereof, are accurate in all material respects;
(v) The applicable Pricing Agreement (to the extent
execution and delivery are governed by the laws of New York)
has been duly executed and delivered by the Company;
(vi) No consent, approval, authorization or order
of, or filing, registration or qualification with, any
Governmental Authority, which has not been obtained, taken or
made (other than as required by any state securities laws, as
to which such counsel need express no opinion) is required
under any Applicable Law for the issuance or sale of the
Designated Securities or the performance by the Company of its
obligations under the applicable Pricing Agreement and the
Indenture. For purposes of this opinion, the term "Governmental
Authority" means any executive, legislative, judicial,
administrative or regulatory body of the State of New York or
the United States of America. For purposes of this opinion, the
term "Applicable Law" means those laws, rules and regulations
of the United States of America and the State of New York, in
each case which in such counsel's experience are normally
applicable to the transactions of the type contemplated by the
applicable Pricing Agreement;
- 31 -
(vii) The Company is not and, after giving effect to
the offering and the sale of the Designated Securities and the
application of their proceeds as described in the Prospectus
and the General Disclosure Package under the heading "Use of
Proceeds", will not be required to be registered as an
investment company under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission
promulgated thereunder;
(viii) The Registration Statement and the Prospectus,
as of their respective effective or issue dates, appear on
their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, except for
the financial statements, financial statement schedules and
other financial data included or incorporated by reference in
or omitted from either of them, and the Form T-1, as to which
such counsel need express no opinion; the Form F-X filed by the
Company, as of its date, appears on its face to be
appropriately responsive in all material respects to the
requirements of the Securities Act;
(ix) The issuance and sale of the Designated
Securities by the Company, the compliance by the Company with
all of the provisions of the applicable Pricing Agreement and
the Indenture and the performance by the Company of its
obligations thereunder will not (i) result in a violation of
the charter or by-laws of the Delaware Subsidiaries, (ii)
breach or result in a default under any agreement, indenture or
instrument governed by New York law and listed on Schedule C to
such counsel's opinion, or (iii) violate Applicable Law or any
judgment, order or decree of any court or arbitrator in the
United States known to such counsel, except where, in the case
of (ii) and (iii) above, the default, breach or violation,
either individually or in the aggregate with all other
violations or defaults referred to in this paragraph (ix) (if
any), would not have a material adverse effect on the current
or future consolidated financial position, shareholders' equity
or results of operations of the Company and its corporate and
partnership subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business;
(x) Assuming the due authorization, execution,
issuance and delivery of the Designated Securities by the
Company under Canadian federal and Alberta law, the Designated
Securities (to the extent that the execution, authentication,
issuance and delivery thereof are governed by the laws of the
State of New York) have been duly executed, authenticated and
delivered by the Company, and when issued by the Company
against payment as provided by the Pricing Agreement with
respect to such Designated Securities will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms except that the
enforceability of the Designated Securities may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally and subject to general principles of equity
- 32 -
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and are entitled to the
benefits provided by the Indenture;
(xi) Assuming the due authorization, execution and
delivery of the Indenture under Canadian federal and Alberta
law, the Indenture, (to the extent that the execution and
delivery thereof are governed by the laws of the State of New
York) has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company,
enforceable in accordance with its terms except that the
enforceability of the Designated Securities may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally and subject to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law);
(xii) Each of the Company's most recent Annual Report
on Form 10-K and each Quarterly Report on Form 10-Q filed since
the filing of the Company's most recent Annual Report on Form
10-K, when filed by the Company with the Commission, appeared
on its face to be appropriately responsive in all material
respects to the applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder; and
(xiii) Under the laws of the State of New York
relating to submission to jurisdiction, the Company has,
pursuant to Section 16 of these Standard Provisions and the
applicable Pricing Agreement and Section 1.15 of the Indenture,
validly and irrevocably submitted to the personal jurisdiction
of any New York State or federal court sitting in The City of
New York, in any action arising out of or relating to the
applicable Pricing Agreement or the Indenture or the
transactions contemplated thereby, has validly and irrevocably
waived any objection to the venue of a proceeding in any New
York State or federal court sitting in The City of New York and
has validly and irrevocably appointed Nexen Petroleum U.S.A.
Inc. as its authorized agent for the purpose described in
Section 16 of these Standard Provisions and the applicable
Pricing Agreement and Section 1.15 of the Indenture for so long
as any of the Designated Securities are outstanding; and
service of process effected on such agent in the manner set
forth in Section 16 of these Standard Provisions and the
applicable Pricing Agreement or Section 1.15 of the Indenture
will be effective to confer valid personal jurisdiction over
the Company.
This opinion (xiii) is subject to the qualification that such
counsel expresses no opinion as to enforceability of forum selection
clauses in federal courts.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the General Corporation Law of the
State of Delaware (the "DGCL") and the laws of the State of New York.
In rendering such opinion, such counsel may state that they have relied
as to factual matters, to the extent they deem appropriate, on
- 33 -
certificates of public officials and officers of the Company. In
addition to rendering the opinions set forth above, such counsel shall
state that, to their knowledge and based upon, among other things, oral
advice of the staff of the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending. In
addition to rendering the opinions set forth above, such counsel shall
also include a statement to the effect that such counsel has
participated in the preparation of the Registration Statement, the
Prospectus, the General Disclosure Package and in conferences and
telephone conversations with officers and other representatives of the
Company and representatives of the independent chartered accountants
for the Company, during which conferences and telephone conversations
the contents of the Registration Statement, the Prospectus, the General
Disclosure Package and related matters were discussed and, although the
limitations inherent in the independent verification of factual matters
and the role of outside counsel are such that such counsel has not
undertaken to investigate or independently verify, and do not assume
responsibility for, the accuracy, completeness or fairness of the
statements contained in either the Registration Statement, the
Preliminary Prospectus, the Prospectus or the General Disclosure
Package (other than as explicitly stated in the opinions referred to in
subsections (iii) and (iv) of this Section 7(e)), on the basis of the
foregoing, such counsel's work in connection with this matter did not
disclose any information that gave such counsel reason to believe that
(a) as of its effective date and the date of the applicable Pricing
Agreement, the Registration Statement (other than the financial
statements, financial statement schedules and other financial data
included or incorporated by reference therein or omitted therefrom or
from those documents incorporated by reference, and the Form T-1 (if
applicable), and the information derived from the reports of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ & Associates, Inc., ▇▇▇▇▇ ▇▇▇▇▇ Company, L.P., Consent of ▇▇▇▇▇▇▇▇
& Associates Consultants Ltd. and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ included or
incorporated by reference into the Registration Statement upon their
authority as experts, as to which such counsel need express no such
belief), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (b) as of the Applicable
Time, the General Disclosure Package (other than the financial
statements, financial statement schedules and other financial data
included or incorporated by reference therein or omitted therefrom or
from those documents incorporated by reference and the information
derived from the reports of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, Inc., ▇▇▇▇▇
▇▇▇▇▇ Company, L.P., Consent of ▇▇▇▇▇▇▇▇ & Associates Consultants Ltd.
and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ included or incorporated by reference into
the Disclosure Package upon their authority as experts, as to which
such counsel need express no such belief) included an untrue statement
of material fact or omitted 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, or (c) as of the date of the
Prospectus and as of the Time of Delivery, the Prospectus (other than
the financial statements, financial statement schedules and other
financial data included or incorporated by reference therein or omitted
therefrom or from those documents incorporated by reference and the
information derived from the reports of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates,
Inc., ▇▇▇▇▇ ▇▇▇▇▇ Company, L.P., Consent of ▇▇▇▇▇▇▇▇ & Associates
- 34 -
Consultants Ltd. and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ included or incorporated
by reference into the Prospectus upon their authority as experts, as to
which we express no such belief), included or includes an untrue
statement of a material fact or omitted or omits 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.
(f) At the time of the execution of the Pricing Agreement,
the Representatives shall have received from the independent
accountants of the Company a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement, the Prospectus, the Canadian Prospectus and the
General Disclosure Package.
(g) At the Time of Delivery, the Representatives shall have
received from the independent accountants of the Company a letter,
dated as of the Time of Delivery, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of
this Section, except that the specified date referred to shall be a
date not more than three business days prior to the Time of Delivery.
(h) (i) None of the Company or any of its Material
Subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, the Canadian Prospectus and the General Disclosure Package
any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, the
Canadian Prospectus and the General Disclosure Package, and (ii) since
the date of the applicable Pricing Agreement or since the respective
dates as of which information is given in the Prospectus, the Canadian
Prospectus and the General Disclosure Package there shall not have been
any change in the capital stock or increase in the long-term debt of
the Company or any of its subsidiaries (except the issuance of shares
of capital stock upon the reinvestment of dividends in accordance with
the Company's dividend reinvestment plan, upon the exercise of options
held by directors and employees of the Company pursuant to the
Company's stock option plans described in the Prospectus, the Canadian
Prospectus and the General Disclosure Package), nor has there been any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, otherwise than as set forth or
contemplated in the Prospectus, the Canadian Prospectus and the General
Disclosure Package, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
- 35 -
Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented and the General Disclosure
Package.
(i) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred in
the rating accorded any of the Company's debt securities (including the
Securities) by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act or any "approved rating
organization," as that term is defined in NI 44-101 and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities (including the Securities);
(j) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (h) of
this Section and as to such other matters as the Representatives may
reasonably request; and
(k) If required pursuant to the terms of the Designated
Securities, at the Time of Delivery, the Company shall have delivered
to the Trustee (with a copy to the Representatives) an instrument
substantially in the form of Schedule A to the Senior Debt Indenture,
pursuant to which the Company shall confirm that it has designated the
subsidiaries marked with footnote (1) on Schedule III to the applicable
Pricing Agreement as "Restricted Subsidiaries" for purposes of, and in
accordance with the terms of, the Senior Debt Indenture, which
instrument shall be in form and substance satisfactory to the
Representatives.
(l) ▇▇▇▇▇▇ ▇▇▇▇, UK Counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery, in form and substance satisfactory to the Representatives,
to the effect that:
(i) Nexen Petroleum U.K. Limited is duly
incorporated in England and Wales and is validly existing, and
in good standing, under the laws of England and Wales; and
(ii) Nexen Petroleum U.K. Limited has all necessary
corporate power and authority to own and hold its respective
properties and conduct its respective businesses as described
in the Prospectus and the General Disclosure Package.
- 36 -
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any Preliminary Prospectus,
the Shelf Prospectus, the Shelf Prospectus as amended or supplemented,
the Prospectus, the Prospectus as amended or supplemented, any Canadian
Preliminary Prospectus, the Canadian Prospectus, the Canadian
Prospectus as amended or supplemented, or any Issuer Free Writing
Prospectus (or in each case any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 8(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in any
Preliminary Prospectus relating to such Designated Securities, the Prospectus
or Canadian Prospectus or any Issuer Free Writing Prospectus, each as amended
or supplemented, relating to such Designated Securities (or in each case any
amendment or supplement thereto).
(b) Each Underwriter of Designated Securities severally,
and not jointly, agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
- 37 -
Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in any Preliminary
Prospectus relating to such Designated Securities, the Prospectus as
amended or supplemented relating to such Designated Securities or any
Issuer Free Writing Prospectus (or in each case any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in such Preliminary Prospectus or
such Prospectus as amended or supplemented (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 8(a) above, counsel to the
indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 8(b) above, counsel
to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also
be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 8 or Section 9 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii)
- 38 -
such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such
settlement.
9. If the indemnification provided for in Section 8 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters of the applicable Designated Securities on the other hand from the
offering of such Designated Securities pursuant to the applicable Pricing
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of such Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters of the applicable Designated Securities on the other hand in
connection with the offering of such Designated Securities pursuant to the
applicable Pricing Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Designated
Securities pursuant to such Pricing Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by such
Underwriters, in each case as set forth on the cover of the Prospectus relating
to such Designated Securities, bear to the aggregate initial public offering
price of such Designated Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
of the applicable Designated Securities on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by such
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters of the applicable Designated
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if such
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 9. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Underwriter of any
Designated Securities shall be required to contribute any amount in excess of
the amount by which the total price at which such Designated Securities
- 39 -
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company. The
respective obligations of the Underwriters of any Designated Securities to
contribute pursuant to this Section 9 are several in proportion to the
aggregate principal amount of Designated Securities set forth opposite their
respective names in Schedule I to the applicable Pricing Agreement and not
joint.
10. If one or more of the Underwriters of any Designated Securities
shall fail to purchase the Designated Securities which it or they are obligated
to purchase under the applicable Pricing Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters of such Designated Securities, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein and therein set forth;
if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of all
such Designated Securities, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting
obligations under such Pricing Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of all such
Designated Securities, the applicable Pricing Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of the applicable Pricing Agreement, either the Representatives or the Company
shall have the right to postpone the Time of Delivery for the Designated
- 40 -
Securities for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, the Shelf Prospectus, the
Prospectus or the Canadian Prospectus (or any amendments or supplements
thereto) or in any other documents or arrangements. As used herein and in any
applicable Pricing Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
11. The applicable Pricing Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery and payment for the Designated Securities, if
at any time prior to such time there shall have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange, the Nasdaq National Market or the Toronto Stock
Exchange or the establishment of minimum prices on any such exchange; (ii) a
suspension or material limitation in trading in the Company's securities on the
New York Stock Exchange or the Toronto Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York or Alberta declared by
either Federal or New York State authorities or authorities of Canada or the
Province of Alberta or a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States or Canada;
(iv) the occurrence of any material adverse change in the financial markets in
the United States or Canada or the outbreak, escalation of hostilities or other
such calamity or crisis involving the United States or Canada or the
declaration by the United States or Canada of a national emergency or war, if
the effect of any such event specified in this clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and
in the manner contemplated by the Prospectus and the General Disclosure Package
relating to the Designated Securities; or (v) the occurrence of any material
adverse change in the existing financial, political or economic conditions in
the United States, Canada or elsewhere which, in the judgment of the
Representatives, would materially and adversely affect the financial markets or
the market for the Securities or other debt securities.
12. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in these Standard Provisions or made by or on behalf of them,
respectively, pursuant to the applicable Pricing Agreement and the provisions
of Sections 6, 8, 9, 16 and 17 hereof, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter or the Company or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Securities.
13. If any Pricing Agreement shall be terminated pursuant to
Section 10 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6, 8, 9, 16 and 17 hereof (all of
which shall survive such termination and remain in full force and effect); but,
if the applicable Pricing Agreement is terminated pursuant to Section 11 hereof
or if for any other reason, the Designated Securities are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses,
- 41 -
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Company shall then be under no further liability
to any Underwriter with respect to such Designated Securities except as
provided in Sections 6, 8, 9, 16 and 17 (all of which shall remain in full
force and effect).
14. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any such Underwriter made
or given by such Representatives jointly.
All statements, requests, notices, and agreements hereunder shall be in
writing, and if to the Underwriters or the Representatives shall be delivered
or sent by mail or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company shall be delivered
or sent by mail or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall also be
delivered or sent by mail or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. Each Pricing Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters named in such Pricing Agreement, the
Company and, to the extent provided in Section 8, Section 9 and Section 12
hereof, the directors of the Company, the officers of the Company who signed
the Registration Statement and each person who controls the Company or any
Underwriter and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of these Standard Provisions or any such Pricing Agreement. No purchaser
of any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
16. The Company irrevocably (i) agrees that any legal suit, action
or proceeding against the Company brought by any Underwriter or by any person
who controls any Underwriter arising out of or based upon any Pricing Agreement
or the transactions contemplated hereby or thereby may be instituted in any New
York State or federal court sitting in The City of New York, (ii) waives, to
the fullest extent it may effectively do so under applicable law, any objection
which it may now or hereafter have to the laying of venue of any such
proceeding or to the convenience of the forum and (iii) submits to the
non-exclusive jurisdiction of any New York State or federal court sitting in
The City of New York in any such suit, action or proceeding. The Company has
appointed Nexen Petroleum U.S.A. Inc. as its authorized agent (the "Authorized
Agent"), which term, as used herein, includes any successor in such capacity,
upon whom process may be served in any such action arising out of or based on
any Pricing Agreement, the Indenture, the Designated Securities or any of the
transactions contemplated hereby or thereby which may be instituted in any
federal or state court in the State of New York by any Underwriter or by any
person who controls any Underwriter, expressly consents to the jurisdiction of
any such court in respect of any such action and waives any other requirements
of or objections to personal jurisdiction with respect thereto. Such
- 42 -
appointment shall be irrevocable. The Company represents and warrants that the
Authorized Agent has agreed to act as such agent for service of process and the
Company agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment
in full force and effect as aforesaid for so long as any of the Securities
shall be outstanding and until the principal of, premium, if any, and interest
on, and any and all other amounts payable with respect to, the Securities shall
have been paid in full. Service of process upon the Authorized Agent and
written notice of such service to the Company (delivered to the Company as
provided in Section 14 hereof) shall be deemed, in every respect, effective
service of process upon the Company.
In respect of any judgment or order given or made against the Company
or any Underwriter (the "Indemnifying Underwriter") for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify each Underwriter,
and such Indemnifying Underwriter, severally, will indemnify the Company, as
the case may be, against any loss incurred by such Underwriter or the Company,
respectively, as a result of any variation as between (i) the rate of exchange
at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of
exchange at which such Underwriter or the Company, as the case may be, is able
to purchase United States dollars with the amount of judgment currency actually
received by such Underwriter or the Company, respectively. The foregoing
indemnity shall constitute separate and independent obligations of the Company
and such Indemnifying Underwriter and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "rate of
exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
17. To the extent that the Company or any of its properties, assets
or revenues may have or may hereafter become entitled to, or have attributed to
it, any right of immunity, on the grounds of sovereignty, from (i) any legal
action, suit or proceeding, (ii) setoff or counterclaim, (iii) the jurisdiction
of any court, (iv) service of process, (v) attachment upon or prior to
judgment, (vi) attachment in aid of execution of judgment, (vii) execution of
judgment, or (viii) other legal process or proceeding for the giving of any
relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
these Standard Provisions, any Pricing Agreement, the Indenture or the
Designated Securities, the Company (to the maximum extent permitted by law)
hereby irrevocably and unconditionally waives, and agrees not to plead or
claim, any such immunity and consents to such relief and enforcement.
18. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
- 43 -
19. THESE STANDARD PROVISIONS AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
20. Each Pricing Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
ANNEX I
PRICING AGREEMENT
-----------------
[REPRESENTATIVES OF THE UNDERWRITERS]
[DATE]
Ladies and Gentlemen:
Nexen Inc., a corporation organized under the federal laws of Canada
(the "Company"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement Standard Provisions attached hereto (the
"Underwriting Agreement Standard Provisions" and, together with this Agreement,
the "Underwriting Agreement"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement Standard Provisions is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Agreement, except that each representation
and warranty in Section 2 of the Underwriting Agreement Standard Provisions
that refers to the Prospectus, the Canadian Prospectus or the General
Disclosure Package shall be deemed to be a representation and warranty as of
the date of the Underwriting Agreement in relation to the Prospectus, the
Canadian Prospectus or the General Disclosure Package, and also a
representation and warranty as of the date of this Agreement in relation to the
Prospectus, the Canadian Prospectus or the General Disclosure Package relating
to the Designated Securities which are the subject of this Agreement. Each
reference to the Representative or the Representatives herein and in the
provisions of the Underwriting Agreement Standard Provisions so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement Standard Provisions are used herein
as therein defined.
The Canadian Prospectus and the Canadian Prospectus relating to the
Designated Securities, in the form previously delivered to you, is now proposed
to be filed with the Canadian Qualifying Authorities, and the Prospectus
relating to the Designated Securities, in the form previously delivered to you,
is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement Standard Provisions incorporated herein by reference,
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
- 2 -
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement Standard Provisions
incorporated herein by reference, shall constitute a binding agreement between
each of the several Underwriters and the Company.
- 3 -
Very truly yours,
NEXEN INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
- 4-
Accepted as of the date hereof:
[REPRESENTATIVES]
By:
By
------------------------------------
Authorized Signatory
For themselves and as Representatives
of the other Underwriters named in
Schedule I hereto
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------------------------------------------- ---------------
[Underwriters]................................. $o
---------------
Total................................. $o
===============
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[%] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[U.S. $]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities plus accrued
interest [AND ACCRUED AMORTIZATION]
UNDERWRITING COMMISSION:
% of the principal amount of the Designated Securities
PROCEEDS TO THE COMPANY:
% of the principal amount of the Designated Securities[, plus accrued
interest from to [and accrued amortization[, if any,] from to ]
REGISTRATION STATEMENT FILE NO.:
FORM OF DESIGNATED SECURITIES:
[Definitive certificated form to be made available for checking and
packaging by the Representatives in New York City at least twenty-four
hours prior to the Time of Delivery]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds
TIME OF DELIVERY:
9:00 a.m. (New York City time) on , 20
APPLICABLE TIME:
o:00 [a/p]m (New York City time) on the date of this Pricing Agreement or
such other time as agreed by the Company and the Representatives.
INDENTURE:
Indenture dated as of , , [and a Supplemental Indenture
thereto dated as of _______, 20__, each] between the Company and , as
trustee (the "Trustee") [together with the Officer's Certificate executed
in connection with the establishment of the terms of the Designated
Securities].
MATURITY:
INTEREST RATE:
[ % per annum] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing _____________, 20__]
REGULAR RECORD DATES:
The ______________ and ______________ next preceding each Interest
Payment Date
INTEREST ACCRUES FROM:
[date]
REDEMPTION PROVISIONS:
The Designated Securities are not subject to redemption prior to maturity
[The Designated Securities may be redeemed, in whole or from time to time
in part, at the option of the Company, in the principal amount of [U.S.
$1,000] or an integral multiple thereof, on or after , at the following
redemption prices (expressed as percentages of principal amount) if
redeemed delivery the 12-month period beginning:
YEAR REDEMPTION PRICE
---- ----------------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[Other redemption provisions may be inserted instead of the foregoing]
Notice of redemption shall be mailed to holders of the Designated
Securities to be redeemed not less than 30 nor more than 60 days prior to
the date fixed for redemption.
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on in each of
the years through at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional [$ ] principal amount of
Designated Securities in the years through at 100% of their principal
amount plus accrued interest.]
[IF DESIGNATED SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
[Insert extension provisions]
[IF DESIGNATED SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
[Insert floating rate provisions]
LISTING REQUIREMENTS:
[List or None]
CLOSING LOCATION:
The Closing for the Designated Securities will occur at the offices of
[Nexen's Canadian Counsel]
ADDITIONAL CLOSING CONDITIONS:
[Indicate if delivery of an opinion from Canadian Counsel to the
Underwriters is required and insert any other closing conditions]
ADDITIONAL OPINIONS:
[IF THE DESIGNATED SECURITIES ARE TO BE QUALIFIED FOR OFFER AND SALE IN
CANADA, INCLUDE THE FOLLOWING - In addition to the opinions provided for
in Section 7(d), ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel for the Company,
shall also furnish to the Representatives their written opinion that,
dated the Time of Delivery for such Designated Securities in form and
substance satisfactory to the Representatives, to the effect that:
(i) All necessary documents have been filed, all
requisite proceedings have been taken and all other legal
requirements have been fulfilled under the laws of each of the
Qualifying Provinces in order to qualifying the distribution of
the Designated Securities through investment dealers or brokers
who are registered under applicable legislation of the
Qualifying Provinces and who comply with the relevant
provisions of such applicable legislation;
(ii) Subject to the assumptions, qualifications,
limitations and understandings set out in the Canadian
Prospectus as amended and supplemented, the Designated
Securities will, as of the date of issue, be qualified
investment under the INCOME TAX ACT (Canada) for trusts
governed by registered retirement savings plans, registered
retirement income funds, registered education savings plans and
deferred profit sharing plans;
(iii) Subject to the assumptions and qualifications
set out in the Canadian Prospectus as amended and supplemented,
the Designated Securities will not, at the date of issue, be
precluded as investments under the statutes listed under the
heading "Eligibility for Investment" in the Canadian Prospectus
as amended or supplemented (and, where applicable, the
regulations under those statutes) subject to compliance with
prudent investor standards and the general investment
provisions and restrictions of those statutes and, in certain
cases, subject to the satisfaction of additional requirements
relating to the investment or lending policies, standards,
procedures and goals and, in certain circumstances, the filing
of those policies and goals;
(iv) All laws of the province of Quebec relating to
the use of French language (other than those related to verbal
communications) will have been complied with in connection with
the sale of the Designated Securities to purchasers in the
province of Quebec if such purchasers received copies of the
Canadian Prospectus as amended and supplemented and forms of
order and confirmation in the French language only, provided
that the Canadian Prospectus as amended and supplemented in the
English language and the forms of order and confirmations in
the English language may be delivered, without delivery of the
French language version thereof, to physical persons in the
province of Quebec who expressly requested them in writing;
(v) The execution and filing of the Canadian
Prospectus, as amended or supplemented, in both the French and
English languages, with the Canadian Qualifying Authorities has
been duly approved and authorized by all necessary action on
the part of the Company and the Canadian Prospectus, as amended
and supplemented, in both the French and English languages, has
been duly executed on behalf of the Company; and
(vi) The Company is a "reporting issuer" in Alberta
and is not included in a list of defaulting reporting issuers
maintained by the ASC and has similar status under the Canadian
Securities Laws in each of the Qualifying Provinces where such
a concept exists.
The opinions in clauses (v) and (vi) above shall replace the
similar opinions in clauses (xxv) and (xxvi), respectively, of Section
7(d) of the Standard Provisions.]
[IN THE EVENT THAT THE APPLICABLE PRICING AGREEMENT SPECIFIES THAT THE
DESIGNATED SECURITIES ARE TO BE SO LISTED, INCLUDE AS APPLICABLE THE
FOLLOWING - In addition to the opinions provided for in Section 7(d),
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel for the Company, shall also furnish
to the Representatives their written opinion that, dated the Time of
Delivery for such Designated Securities in form and substance
satisfactory to the Representatives, to the effect that:
(vii) The Toronto Stock Exchange has conditionally
approved the listing of the Designated Securities subject to
completion of the listing conditions set out in its letter
granting conditional listing;
(viii) The Designated Securities have been approved
for listing on New York Stock Exchange, Inc., subject only to
official notice of issuance;
ADDITIONAL DOCUMENTS INCORPORATED BY REFERENCE:
[List or None]
OTHER TERMS:
[Insert any other terms of the Designated Securities]
SCHEDULE III
RESTRICTED SUBSIDIARIES
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Subsidiary Type of Entity Jurisdiction of Organization
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MATERIAL SUBSIDIARIES
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Subsidiary Type of Entity Jurisdiction of Organization
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SCHEDULE IV
[SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS]
FILED PURSUANT TO RULE 433
REGISTRATION NO. 333-?
?, 2007
NEXEN INC.
[INSERT PRICING TERM SHEET]
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH
THE SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU
INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND
OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS
FOR FREE BY VISITING ▇▇▇▇▇ ON THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY,
THE ISSUER, ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL
ARRANGE TO SEND YOU THE PROSPECTUS IF YOU REQUEST
IT BY CALLING ? TOLL FREE AT ?.
