AMERADA XXXX CORPORATION
7.00% Automatically Convertible Equity Securities (ACES)
Underwriting Agreement
November 19, 2003
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Amerada Xxxx Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), 12,000,000 shares of its 7.00% automatically convertible
equity securities ("ACES"), convertible into common stock, par value $1.00 per
share (the "Stock") of the Company (the "Firm Securities") and, at the election
of the Underwriters, up to an additional 1,500,000 shares of ACES (the "Optional
Securities") (the Firm Securities and the Optional Securities that the
Underwriters elect to purchase pursuant to Section 1 hereof being collectively
called the "Securities"). The Securities will be established by the Certificate
of Designations identified in Schedule I hereto (the "Certificate of
Designations"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representative", as used herein, shall each be deemed to refer to such firm or
firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities, convertible debt securities, warrants,
preferred stock, convertible preferred stock and Stock (the "Shelf Securities")
to be issued from time to time by the Company. The Company also has filed with,
or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the Securities.
The registration statement as amended to the date of this Agreement is
hereinafter referred to as the "Registration Statement" and the related
prospectus covering the
Shelf Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the number of shares of Firm Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
In addition, the Company hereby grants to the Underwriters the right to
purchase at their election up to 1,500,000 Optional Securities, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Securities, provided
that the purchase price per Optional Security shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Firm Securities but not payable on the Optional Securities. Any
such election to purchase Optional Securities may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after
the date of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as
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determined by you but in no event earlier than the First Time
of Delivery (as defined in Section 3 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten Business Days (as
defined in Section 3 hereof) after the date of such notice.
2. The Company understands that the several Underwriters intend (i) to make
a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Firm Securities shall be made by wire transfer in
immediately available funds to the account, specified by the Company to the
Representative no later than noon the Business Day (as defined below) prior to
the First Time of Delivery (as defined below), on the date and at the time and
place set forth in Schedule I hereto (or at such other time and place on the
same or such other date, not later than the fifth Business Day thereafter, as
you and the Company may agree in writing). Payment for the Optional Securities
shall be made by wire transfer in immediately available funds to the same
account on the date specified by Xxxxxxx, Sachs & Co. in the written notice
given by you of the Underwriters' election to purchase such Optional Securities,
or such other time and date as you and the Company may agree upon in writing.
Such time and date for payment and delivery of the Firm Securities is herein
called the "First Time of Delivery", such time and date for payment and delivery
of the Optional Securities, if not the First Time of Delivery, is herein called
the "Second Time of Delivery", and each such time and date for payment and
delivery with respect to the Securities is referred to herein as a "Closing
Date". As used herein, the term "Business Day" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Payment for the Securities shall be made against delivery by the Company to
the nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities in such authorized denominations and
registered in such names as Xxxxxxx, Xxxxx & Co. may request upon notice to the
Company, with any transfer taxes payable in connection with the transfer to the
Underwriters of the Securities duly paid by the Company.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act
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and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties shall not apply
to statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
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,
in light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, 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,
in light of the circumstances under which they were made, not misleading;
(c) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified in conformity with
generally accepted accounting principles applied on a consistent basis, and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly in all material respects the
information required to be stated therein;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
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material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' 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;
(e) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(f) each of Amerada Xxxx Limited and Xxxx Oil Virgin Islands Corp.
(the "Significant Subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of capital
stock of each Significant Subsidiary of the Company have been duly
authorized and validly issued, are fully-paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors' qualifying
shares) are owned by the Company, directly or indirectly, free and clear of
all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered by
the Company;
(h) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; the shares of Stock initially issuable upon conversion of
the Securities have been duly and validly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions
of the Securities, will be duly and validly issued, fully paid
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and non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(i) the Certificate of Designations creating the Securities, the
proposed form of which has been furnished to you, will have been duly filed
with the Secretary of State of Delaware on or before the First Time of
Delivery.
(j) the Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, will have been duly issued and
delivered and will be fully paid and non-assessable; and the Securities
will conform in all material respects to the descriptions thereof in the
Prospectus;
(k) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound; the
issue and sale of the Securities and the performance by the Company of all
its obligations under the Securities and this Agreement and the
consummation by it of the transactions herein and therein contemplated will
not (A) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches or defaults as would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, or (B) result in any
violation of (i) the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their respective
properties, except in the case of this clause (ii), for violations that
will not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(l) no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body
is required on the part of the Company for the issue and sale of the
Securities or the consummation by the Company of the
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transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act or as may be
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters and except
for those which, if not obtained, will not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(m) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending against, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries
is or may be subject which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(n) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act;
(o) the Company is not and, after giving effect to the offering and
sale of the Securities, 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");
(p) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the
Company and its subsidiaries taken as a whole; and
(q) the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
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
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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.
5. The Company covenants and agrees with each of the several Underwriters
as follows:
(a) to file the Prospectus pursuant to Rule 424 under the Securities
Act not later than the Commission's close of business on the second
Business Day following the date of determination of the offering price of
the Securities or, if applicable, such earlier time as may be required by
Rule 424(b);
(b) to furnish to you and counsel for the Underwriters, at the expense
of the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the period
mentioned in paragraph (e) below, to furnish each of the Underwriters as
many copies of the Prospectus (including all amendments and supplements
thereto) and documents incorporated by reference therein as you may
reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to
you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably object;
(d) for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, to advise you
promptly, and to confirm such advice in writing, (i) when any amendment to
the Registration Statement shall have become effective, (ii) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to
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use its reasonable best efforts to prevent the issuance of any such stop
order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements as to material facts therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Securities may have been sold by
you on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements as to material facts in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Securities and the shares of Stock
issuable upon conversion of the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities; provided that the Company
shall not be required to file a general consent to service of process in
any jurisdiction, or become subject to tax or to register as a foreign
corporation in any jurisdiction in which it is not now so registered;
(g) to make generally available to its security holders and to you as
soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
(h) so long as the Securities are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished generally to holders of Securities, and copies of any reports and
financial statements filed with the Commission or any national securities
exchange;
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(i) during the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, any securities of
the Company that are substantially similar to the Securities, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement
and pursuant to the Company's Employees' Savings and Stock Bonus Plan and
the Savings and Stock Bonus Plan for Retail Operations Employees), without
your prior written consent. The foregoing restriction shall not apply to
the filing of a registration statement in respect of any securities of the
Company, including Stock, after the date hereof; provided, that the Company
obtains the prior written consent of Xxxxxxx, Xxxxx & Co.; and
(j) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
and delivery of the Securities and the shares of Stock issuable upon
conversion of the Securities, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities and the shares of Stock issuable upon
conversion of the Securities under the laws of such jurisdictions as the
Underwriters may designate (including reasonable fees of counsel for the
Underwriters and their disbursements), (iv) related to any filing with the
National Association of Securities Dealers, Inc., (v) incident to the
preparation of the Certificate of Designations and the filing of the
Certificate of Designations with the Secretary of State of Delaware, (vi)
in connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Preliminary and Supplemental
Blue Sky Memoranda and any Legal Investment Survey and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vii)
payable to rating agencies in connection with the rating of the Securities,
(viii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors and (ix) the cost and charges of
any transfer agent;
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(k) to file the Certificate of Designations creating the Securities,
the proposed form of which has been furnished to you, with the Secretary of
State of Delaware on or before the First Time of Delivery;
(l) to reserve and keep available at all times, free of preemptive
rights, shares of Stock for the purpose of enabling the Company to satisfy
any obligations to issue shares of its Stock upon conversion of the
Securities; and
(m) to use its commercially reasonable efforts to list, subject to
notice of issuance, the Securities and the shares of Stock issuable upon
conversion of the Securities on the New York Stock Exchange.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and as of
the Closing Date and the Company shall have complied with all agreements
and all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial position,
stockholders' equity or results of operations of the Company and its
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subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus; and neither the Company nor any of
its Significant Subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity 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;
(e) you shall have received on and as of the Closing Date a
certificate of an executive officer of the Company, with specific knowledge
about the Company's financial matters, to the effect set forth in
subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of
this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole from that
set forth or contemplated in the Registration Statement.
(f) White & Case LLP, counsel for the Company, shall have furnished to
you their written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus as amended or
supplemented;
(ii) the Company has an authorized capitalization as set forth in
the Prospectus, and the shares of Stock initially issuable upon
conversion of the Securities have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance
with the provisions of the Securities, will be duly and validly issued
and fully paid and non-assessable;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
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(iv) the Certificate of Designations creating the Securities has
been duly filed with the Secretary of State of Delaware on or before
the First Time of Delivery.
(v) the Securities have been duly authorized, executed and
delivered by the Company and, when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable;
(vi) the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities and this Agreement
and the consummation by it of the transactions herein and therein
contemplated will not result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute;
(vii) no consent, approval, authorization, order, license,
registration or qualification of or with any governmental agency or
body is required for the issue and sale by the Company of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act or as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriter;
(viii) the statements in the Prospectus under "Description of
Preferred Stock" and "Description of Common Stock" and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects the
information called for with respect to such legal matters, documents
or proceedings;
(ix) such counsel (A) does not believe that (except for the
financial statements and financial and statistical data included
therein, as to which such counsel need express no belief) any part of
the Registration Statement (including the documents incorporated by
reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part became
effective, 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) is of the opinion that
the Registration Statement and the Prospectus
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and any amendments and supplements thereto (except for the financial
statements and financial and statistical data included therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and (C)
does not believe that (except for the financial statements and
financial and statistical data included therein, as to which such
counsel need express no belief) the Registration Statement and the
Prospectus, on the date of this Agreement, 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, or that the Prospectus as amended or
supplemented, if applicable, on the Closing Date contained any 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;
(x) the Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act; and
(xi) subject to the assumptions and limitations contained
therein, we confirm the opinion set forth in the Prospectus Supplement
under the caption "Certain United States Federal Income Tax
Consequences" regarding the material United States federal income tax
consequences of the offering of ACES.
(g) J. Xxxxxxx Xxxxxxx, Esq., Executive Vice President and General
Counsel of the Company, shall have furnished to you his written opinion,
dated the Closing Date, in form and substance satisfactory to you, to the
effect that:
(i) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(ii) each of the Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation with corporate power and
authority to own its properties and conduct its business as
14
described in the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified and in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all of the issued shares of
capital stock of each Significant Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors' qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(iii) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending against or, to the best of such counsel's
knowledge, threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or its subsidiaries is or may be the
subject which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know of any
statutes, regulations, contracts or other documents required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
(iv) neither the Company nor any of its Significant Subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws (or similar constitutive documents) or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole; the issue and sale
of the Securities
15
and the performance by the Company of its obligations under the
Securities and this Agreement, the issue of Stock upon conversion of
the Securities and the consummation by it of the transactions herein
and therein contemplated will not (A) conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of the Significant Subsidiaries is a party or by which the Company
or any of the Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Significant
Subsidiaries is subject, except for such conflicts, breaches or
defaults as would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and (B) result in any
violation of (x) the provisions of the Certificate of Incorporation or
the By-Laws of the Company or (y) any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties except, in the case of this clause (y), for
violations that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(v) the statements in the Prospectus incorporated by reference
from Item 3 of Part 1 of the Company's Annual Report on Form 10-K for
the year ended December 31, 2002 and as such statements have been
amended or supplemented by the Company's subsequent reports filed on
Form 10-Q or Form 8-K, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to therein,
fairly present in all material respects the information called for
with respect to such legal matters, documents or proceedings; and
(vi) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder.
In rendering such opinions, White & Case LLP and Xx. Xxxxxxx may rely (A)
as to matters involving the application of laws other than the laws of the
United States and the States of New York and Delaware, to the extent such
counsel deem proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (in form and substance reasonably satisfactory to
16
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B) as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of each such counsel
shall state that the opinion of any such other counsel upon which they relied is
in form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (ix) of paragraph (f) above White & Case
LLP may state their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendment
or supplement thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof (including the
documents incorporated by reference therein) but is without independent check or
verification except as specified.
The opinions of White & Case LLP and Xx. Xxxxxxx described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(h) on the date hereof and on the Closing Date, Ernst & Young LLP
shall have furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) you shall have received on and as of the Closing Date an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, with respect to the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(j) on or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the
Representative shall reasonably request; and
(k) the Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from Xxxx X. Xxxx, Xxxx X. X'Xxxxxx, J.
Xxxxxxx Xxxxxxx, X. Xxxxxx Xxxxxx, and Xxxx X. Xxxxxxxx, substantially to
the effect set forth in Subsection 5(i) hereof in form and substance
satisfactory to you.
17
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto and as used
during the period specified in Section 5(d) hereof) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use therein and except that
with respect to any preliminary prospectus, such indemnity shall not inure to
the benefit of any Underwriter (or the benefit of any person controlling such
Underwriter) if the person asserting any such losses, claims, damages or
liabilities purchased the Securities that are the subject thereof from such
Underwriter and if such person was not sent or given a copy of the Prospectus at
or prior to confirmation of the sale of such Securities to such person in any
case where such sending or giving is required by the Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in
18
such proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of Underwriters shall be designated in writing by Xxxxxxx, Sachs & Co. and any
such separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
19
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above 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 the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
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 agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of 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. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
20
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the respective Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States, or (iv) there shall have occurred any outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial or economic conditions in or
affecting the United States, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representative, is material and adverse and
which, in the judgment of the Representative, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate number of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Securities, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Firm Securities set forth opposite their respective names in Schedule I hereto
bears to the aggregate number of Firm Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Securities that any
Underwriter
21
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company shall be given to it at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Secretary.
22
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
23
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
AMERADA XXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted: November 19, 2003
XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
--------------------------------
(Xxxxxxx, Sachs & Co.)
Acting severally on behalf of
itself and the several Underwriters
listed in Schedule II hereto.
24
SCHEDULE I
Representatives: Xxxxxxx, Xxxxx & Co.
Underwriting Agreement dated: November 19, 2003
Registration Statement No.: 333-110294
Title of Securities: 7.00% Automatically Convertible Equity
Securities (ACES)
Certificate of Designations: Executed by the Company and to be filed
with the Secretary of State of Delaware
on or before the First Time of Delivery.
Issue size: $600,000,000 (plus $75,000,000 over-
allotment option)
Price to public: $50.00 per ACES
Gross spread 3.00%
Over-allotment option: To the extent the underwriters
sell more than 12,000,000 ACES, the
underwriters have the option to purchase
up to 1,500,000 additional ACES from us
at the public offering price, less
underwriting discounts and commissions,
within 30 days from the date of this
prospectus supplement.
Other Provisions: As set forth in the Prospectus
Supplement dated November 19, 2003
First Time of Delivery: November 25, 2003
Closing Location: Xxxxx Xxxx & Xxxxxxxx
Address for Notices to 00 Xxxxx Xxxxxx
Xxxxxxxxxxxx: Xxx Xxxx, Xxx Xxxx 00000
Attention: Prospectus Department
25
SCHEDULE II
Number of Firm
Securities to be
Purchased
Xxxxxxx, Sachs & Co..................................... 7,200,000
Banc of America Securities LLC.......................... 1,200,000
Citigroup Global Markets Inc. .......................... 1,200,000
X.X. Xxxxxx Securities Inc. ............................ 1,200,000
Xxxxxx Xxxxxxx & Co. Incorporated....................... 1,200,000
Total............................................. 12,000,000
==========
26
