EXHIBIT 1.1
OXY CAPITAL TRUST I
(a Delaware business trust)
20,000,000 Preferred Securities
8.16% Trust Originated Preferred Securities/SM/ ("TOPrS"/SM/)
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
Dated: January 13, 1999
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"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill
Lynch & Co., Inc.
Table of Contents
Page
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SECTION 1. Representations and Warranties................................. 3
SECTION 2. Sale and Delivery to Underwriters; Closing..................... 7
SECTION 3. Foreign Offerings.............................................. 9
SECTION 4. Covenants of the Offerors...................................... 11
SECTION 5. Payment of Expenses............................................ 13
SECTION 6. Conditions of Underwriters' Obligations........................ 14
SECTION 7. Indemnification................................................ 21
SECTION 8. Contribution................................................... 23
SECTION 9. Representations, Warranties and Agreements to Survive Delivery. 24
SECTION 10. Termination of Agreement....................................... 24
SECTION 11. Default by One or More of the Underwriters..................... 25
SECTION 12. Notices........................................................ 26
SECTION 13. Parties........................................................ 26
SECTION 14. GOVERNING LAW AND TIME......................................... 26
SECTION 15. Effect of Headings............................................. 26
SCHEDULES
Schedule A - List of Underwriters...................................... Sch A-1
Schedule B - Pricing Information....................................... Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Skadden, Arps, Slate, Meagher and Flom LLP.. A-1
Exhibit B - Form of Opinion of Emmet, Marvin & Martin LLP.................. B-1
Exhibit C - Form of Opinion of Richards, Layton & Finger, P.A. ............ C-1
i
OXY CAPITAL TRUST I
(a Delaware business trust)
20,000,000 Preferred Securities
8.16% Trust Originated Preferred Securities/SM/ ("TOPrS"/SM/)
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
January 13, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY INC.
as Representatives of the several Underwriters
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Oxy Capital Trust I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (S)(S) 3801 et seq.),
and Occidental Petroleum Corporation, a Delaware corporation ("Occidental" or
the "Guarantor" and, together with the Trust, the "Offerors") confirm their
agreement (the "Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 11
hereof), for whom Merrill Lynch, A.G. Edwards & Sons, Inc., Morgan Stanley & Co.
Incorporated, PaineWebber Incorporated, Prudential Securities Incorporated and
Salomon Smith Barney Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
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"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill
Lynch & Co., Inc.
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 8.16% Trust Originated Preferred Securities (liquidation
amount of $25 per preferred security) of the Trust (the "Preferred Securities")
set forth in said Schedule A, and with respect to the grant by the Trust to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of the additional 1,000,000
Preferred Securities to cover over-allotments, if any. The aforesaid 20,000,000
Preferred Securities (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the 1,000,000 Preferred Securities subject
to the option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities." The Preferred Securities
will be guaranteed by the Guarantor with respect to distributions and payments
upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of January 20, 1999,
between the Guarantor and The Bank of New York, as Trustee (the "Preferred
Guarantee Trustee"), and entitled to the benefits of certain backup undertakings
described in the Prospectus (as defined herein) with respect to the Guarantor's
agreement pursuant to the Officers' Certificate (as defined herein) to pay all
expenses relating to administration of the Trust (the "Undertakings").
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The entire proceeds from the
sale of the Securities will be combined with the entire proceeds from the sale
by the Trust to the Guarantor of its common securities (the "Common Securities")
guaranteed by the Guarantor, to the extent set forth in such guarantee, with
respect to distributions and payments upon liquidation and redemption (the
"Common Securities Guarantee" and, together with the Preferred Securities
Guarantee the "Guarantees") pursuant to a Common Securities Guarantee Agreement
(the "Common Securities Guarantee Agreement" and, together with the Preferred
Securities Guarantee Agreement, the "Guarantee Agreements"), dated as of January
20, 1999 between the Guarantor and The Bank of New York, as Trustee, and will be
used by the Trust to purchase $515,463,925 aggregate principal amount of 8.16%
Subordinated Deferrable Interest Notes due 2039 (the "Subordinated Debt
Securities") to be issued by Occidental and, if all or any part of the Option
Securities are purchased, up to an additional $25,773,200 aggregate principal
amount of Subordinated Debt Securities (the "Option Subordinated Debt
Securities"). The Preferred Securities and the Common Securities will be issued
pursuant to the amended and restated declaration of trust of the Trust, dated as
of January 20, 1999 (the "Declaration"), among the Guarantor, as Sponsor, the
trustees named therein (the "Trustees") and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated
Debt Securities will be issued pursuant to an indenture, dated as of January 20,
1999 (the "Base Indenture"), among the Guarantor and The Bank of New York, as
trustee (the "Debt Trustee"), and an officers' certificate as provided for in
the Base Indenture (the "Officers' Certificate," and together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (No. 333-69303) and, if
applicable, one or more amendments thereto covering the registration of (i) the
Securities and (ii) the debt securities of Occidental under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the
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Commission under the 1933 Act (the "1933 Act Regulations"). Such registration
statement (as amended, if applicable) has been declared effective by the
Commission and the Base Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Promptly after execution and delivery
of this Agreement, the Offerors will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Offerors have elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and 424(b). The
information included in such Term Sheet that was omitted from such registration
statement at the time it became effective but that is deemed part of such
registration statement at the time it became effective is referred to as "Rule
434 Information." Each prospectus used before such Rule 424(b) prospectus has
been filed and any prospectus that omitted the Rule 434 Information, in each
case that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and any documents, financial statements and schedules filed by the Company
with the Commission under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and so incorporated or deemed to be incorporated by reference (such
incorporated documents, financial statements and schedules being herein called
the "Incorporated Documents"), at the time it became effective and including the
Rule 434 Information is herein called the "Registration Statement." Any related
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement" and after such
filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the prospectus
supplement relating to the Securities and the Incorporated Documents, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities (as amended, supplemented or replaced and provided to the
Underwriters for use in connection with the offering of the Securities if such
amendment, supplement or replacement is not required to be filed by the Offerors
pursuant to Rule 424(b)) is herein called the "Prospectus." Notwithstanding the
foregoing, for purposes of this Agreement any prospectus supplement prepared or
filed with respect to an offering pursuant to the Registration Statement of a
series of securities other than the Securities shall not be deemed to have
supplemented the Prospectus. If Rule 434 is relied on, the term "Prospectus"
shall refer to the preliminary prospectus dated January 8, 1999 together with
the Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
SECTION 1. Representations and Warranties. The Offerors jointly and
------------------------------
severally represent and warrant to each of the Underwriters as follows:
(a) The Incorporated Documents, when they were filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, as the case may be, complied in all
material respects with the requirements
3
of the 1934 Act and the rules and regulations of the Commission under the
1934 Act (the "1934 Act Regulations"), and any Incorporated Documents filed
subsequent to the date hereof and prior to the termination of the offering
of the Securities, will, when they are filed with the Commission, comply in
all material respects with the requirements of the 1934 Act and the 1934
Act Regulations; no such Incorporated Document, when it was filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, contained, and no Incorporated
Document filed subsequent to the date hereof and prior to the termination
of the offering of the Securities 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, in the
light of the circumstances under which they were or will be made, not
misleading.
(b) Each preliminary prospectus relating to the Securities filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, when so filed, and the Registration Statement, at the time it
became effective, complied in all material respects with the provisions of
the 1933 Act and the 1933 Act Regulations; at the date hereof, at the
Closing Time (as defined herein) and at the Delivery Date (as defined
herein), if applicable, the Registration Statement and the Prospectus, and
any supplement or amendment thereto relating to the Securities, comply and
will comply in all material respects with the provisions of the 1933 Act
and the 1933 Act Regulations; and the Registration Statement and the
Prospectus, and any such supplement or amendment thereto relating to the
Securities, at all such times did not 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 the light
of the circumstances under which they were made, not misleading; except
that this representation and warranty does not apply to statements or
omissions in the Registration Statement, the Prospectus or any preliminary
prospectus, or any amendment or supplement thereto, made in reliance upon
information furnished to the Company in writing by any Underwriter
expressly for use therein or to those parts of the Registration Statement
that constitute the Trustee's Statement of Eligibility on Form T-1 under
the 1939 Act (the "Form T-1"). There is no contract or document of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that
is not described or filed as required. In the event that the Registration
Statement (including any prospectus filed as part of the Registration
Statement), any preliminary prospectus or the Prospectus or any amendment
or supplement to any of the foregoing was or is filed electronically
pursuant to EDGAR, then the Registration Statement (including any
prospectus filed as part thereof), such preliminary prospectus, the
Prospectus and any such amendment or supplement delivered to the
Underwriters for use in connection with the offering of the Securities was
or will be, as the case may be, identical (as to content) to the
electronically transmitted copy thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(c) This Agreement has been duly authorized by each of the Trust and
Occidental and conforms in all material respects to the description thereof
in the Prospectus.
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(d) The Indenture has been duly authorized by Occidental.
(e) The Indenture (assuming the due authorization, execution and
delivery thereof by the Debt Trustee) is, and the Subordinated Debt
Securities (when executed by Occidental and authenticated and issued in
accordance with the Indenture and delivered to and paid for by the
purchaser thereof) will be, the legal, valid and binding obligations of
Occidental, enforceable against Occidental in accordance with their terms,
except as such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors' rights generally and
(B) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). The Preferred Securities
(when executed by the Trust and authenticated in accordance with the terms
of the Declaration and delivered to and paid for by the purchasers thereof)
will be entitled to the benefits of the Declaration (subject to the
exceptions set forth in the preceding sentence).
(f) Occidental and each of Occidental Chemical Holding Corporation, a
California corporation, and Occidental Oil and Gas Corporation, a
California corporation (each a "Principal Domestic Subsidiary" and
collectively the "Principal Domestic Subsidiaries") is a validly existing
corporation in good standing under the laws of its state of incorporation.
Occidental and each Principal Domestic Subsidiary has full corporate power
and authority to own its properties and carry on its business as presently
conducted, as described in the Prospectus, and is duly registered or
qualified to conduct business, and is in good standing, in each
jurisdiction in which it owns or leases property or transacts business and
in which such registration or qualification is necessary, except as to
jurisdictions where the failure to do so would not have a material adverse
effect on Occidental and its subsidiaries, taken as a whole. All of the
outstanding capital stock or other securities evidencing equity ownership
of each Principal Domestic Subsidiary has been duly and validly authorized
and issued and is fully paid and non-assessable, and is owned by
Occidental, directly or indirectly through subsidiaries, free and clear of
any security interest, claim, lien or encumbrance. There are no outstanding
rights, warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in
any such Principal Domestic Subsidiary, except for rights, warrants or
options held by Occidental.
(g) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, unless Occidental has notified the
Underwriters as provided in Section 4(d) hereof, there has not been any
material adverse change in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole.
(h) Occidental is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein (including, without limitation, the issuance and sale
of the Preferred Securities, the Preferred
5
Securities Guarantee and the Subordinated Debt Securities) and compliance
by the Trust and Occidental with their respective obligations under this
Agreement and the Indenture will not conflict with or constitute a breach
of or a default (with the passage of time or otherwise) under (A) the
Restated Certificate of Incorporation or Bylaws of Occidental, in each
case, as amended, or the certificate of trust, as amended (the "Certificate
of Trust") of the Trust, (B) any agreement or instrument (which is,
individually or in the aggregate, material to Occidental and its
subsidiaries, taken as a whole, or the Trust) to which Occidental or the
Trust is a party or by which either is bound or (C) any order of any court
or governmental agency or authority presently in effect and applicable to
Occidental, any Principal Domestic Subsidiary or the Trust. Except for
orders, permits and similar authorizations required under the securities or
Blue Sky laws of certain jurisdictions, including jurisdictions outside the
United States, or required of any securities exchange on which any of the
Securities might be listed, no consent, approval, authorization or other
order of any regulatory body, administrative agency or other governmental
body is legally required for the valid issuance and sale of the Securities.
(i) To the best of Occidental's knowledge, the accountants who have
audited and reported upon the consolidated financial statements filed with
the Commission as part of the Registration Statement and the Prospectus are
independent accountants as required by the 1933 Act. The consolidated
financial statements included in the Registration Statement and Prospectus,
or incorporated therein by reference, fairly present the consolidated
financial position and results of operations of the entities to which such
statements relate at the respective dates and for the respective periods to
which they apply. Such consolidated financial statements have been prepared
in accordance with generally accepted accounting principles consistently
applied, except as set forth in the Registration Statement and Prospectus.
(j) The Preferred Securities Guarantee Agreement has been duly
authorized and, at the Closing Time, will have been duly executed by
Occidental and (assuming the due authorization, execution and delivery by
the Preferred Guarantee Trustee) constitutes the legal, valid and binding
agreement of Occidental enforceable against Occidental in accordance with
its terms, except as such enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights generally and (B) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(k) The Preferred Securities, the Subordinated Debt Securities, the
Preferred Securities Guarantee, the Declaration and the Indenture will
conform in all material respects to the respective statements relating
thereto contained in the Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(l) The Declaration has been duly authorized by the Regular Trustees
(as defined in the Declaration), and, at the Closing Time, will have been
duly executed and delivered by the Regular Trustees, and assuming due
authorization, execution and delivery of the Declaration by the Property
Trustee under the Declaration (the "Property
6
Trustee") and the Delaware Trustee under the Declaration (the "Delaware
Trustee" and, together with the Regular Trustees and the Property Trustee,
the "Trustees"), the Declaration will, at the Closing Time, be a valid and
binding obligation of the Regular Trustees, enforceable against the Regular
Trustees in accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforcement of creditors' rights generally and (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and will conform in all material respects
to all statements relating thereto in the Prospectus; and at the Closing
Time, the Declaration will have been qualified under the 1939 Act.
(m) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and (subject to the terms of the Declaration) fully paid and non-
assessable undivided beneficial interests in the Trust and will be entitled
to the benefits of the Declaration; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and
(subject to the terms of the Declaration) holders of Preferred Securities
will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for
profit.
(n) Additional Certifications. Any certificate signed by any officer
or trustee of the Offerors and delivered to the Underwriters or to counsel
for the Underwriters in connection with transactions contemplated hereby
shall be deemed a representation and warranty by the respective Offeror to
the Underwriters as to the matters covered thereby on the date of such
certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
------------------
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule B, the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Option Securities. In addition, on the basis of the representations and
-----------------
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional 1,000,000 Preferred Securities at the
price per Preferred Security set forth in Schedule B, less an amount per
Preferred Security equal to any distributions declared by the Trust and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Initial Securities upon notice by the Representatives to the Trust and the
Guarantor setting forth the number of Option Securities as to which the several
Underwriters are
7
then exercising the option and the time and date of payment and delivery (the
"Delivery Date") for such Option Securities. Any such time and a Delivery Date
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional Preferred Securities.
(c) Commission. As compensation to the Underwriters for their commitments
----------
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of
Occidental, Occidental hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per Preferred Security set
forth in Schedule B as compensation to the Underwriters for their commitments
under this Agreement.
(d) Payment. Payment of the purchase price for, and delivery of
-------
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood LLP, 10877 Wilshire Boulevard, Los Angeles, California 90024, or at such
other place as shall be agreed upon by the Representatives and the Offerors, at
10:00 A.M. (Eastern time) on January 20, 1999 (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Offerors (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Guarantor and the Trust, on each Delivery Date as specified in the notice
from the Representatives to the Guarantor and the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust to the Underwriters,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Merrill Lynch, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the Delivery Date, as the case may be, but such payment shall
not relieve such Underwriter from its obligations hereunder.
At the Closing Time and on each Delivery Date, Occidental will pay, or
cause to be paid, the commission payable at such time to the Underwriters under
Section 2(c) hereof by wire transfer of immediately available funds to a bank
account designated by Merrill Lynch.
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(e) Denominations; Registration. Certificates for the Initial Securities
---------------------------
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Delivery Date, as the case
may be. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Delivery Date, as the case may be.
SECTION 3. Foreign Offerings.
-----------------
Each Underwriter, severally and not jointly, represents and agrees that (i)
it has not solicited, and will not solicit, offers to purchase any of the
Securities from, (ii) it has not sold, and will not sell, any of the Securities
to, and (iii) it has not distributed, and will not distribute, the Prospectus
to, any person or entity in any jurisdiction outside of the United States
(collectively "Foreign Offers and Sales") except, in each case, in compliance in
all material respects with all applicable laws and, in connection with the
initial offering of, or subscription for, any of the Securities, only with the
prior written consent of Occidental and in full compliance with any requirements
and procedures established by Occidental with respect to any such Foreign Offers
and Sales. For the purposes of this paragraph, "United States" means the United
States of America, its territories, its possessions (including the Commonwealth
of Puerto Rico) and other areas subject to its jurisdiction.
In particular and without limiting the generality of the foregoing:
(a) Each Underwriter, severally and not jointly, agrees to distribute,
in connection with any Foreign Offers and Sales, only those Prospectuses
used in connection therewith that have been appropriately "stickered" for
use in the jurisdiction in which such Foreign Offers and Sales are to be
made.
(b) With respect to the United Kingdom, each Underwriter, severally
and not jointly, represents and agrees that (A) it has not offered or sold
and, prior to the expiry of the period of six months from the Closing Time,
will not offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (B) it has complied and will comply with all applicable provisions of
the Financial Services Act of 1986 (the "Financial Services Act") with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom and (C) it has only issued or passed
on, and will only issue or pass on, in the United Kingdom any document
received by it in connection with the issue of the Securities, other than
any document which consists of or any part of listing particulars,
supplementary listing particulars or any other document required or
permitted to be published by listing rules under Part IV of the Financial
Services Act, to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
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(c) With respect to Japan, each Underwriter understands that the
Securities have not been, and will not be, registered under the Securities
and Exchange Law of Japan, and, accordingly, each Underwriter, severally
and not jointly, represents and agrees that in connection with the initial
offering of any of the Securities, it has not, directly or indirectly,
offered or sold, and will not, directly or indirectly, offer or sell, any
of the Securities in Japan or to any resident of Japan (including any
corporation or other entity incorporated or organized under the laws of
Japan), or to others for re-offering or resale, directly or indirectly, in
Japan or to any such resident of Japan, except, in each case, in compliance
in all material respects with the Securities and Exchange Law of Japan.
With respect to the Provinces of Canada (the "Provinces"), each Underwriter,
severally and not jointly, represents and agrees that, in connection with the
initial offering of any of the Securities, (A) it will not, directly or
indirectly, offer or sell any of the Securities in any of the Provinces or to,
or for the benefit of, any resident of any of the Provinces after the date (the
"Canadian Ending Date") set by Occidental for the end of the offer of such
Securities, and, without the prior written consent of Occidental, it will not
distribute or permit to be distributed any Prospectus in any of the Provinces or
to, or for the benefit of, any resident of any of the Provinces after the
Canadian Ending Date, (B) with respect to anything done by such Underwriter in
relation to the Securities in, from, or otherwise involving, any of the
Provinces, it has complied, and will comply, in all material respects, with all
applicable provisions of the securities legislation of Canada and the Provinces
(the "Canadian Securities Legislation") (including, without limitation, the
conveyance, or the provision of assistance to Occidental in conveying, any right
of rescission, damages or other right as required by applicable Canadian
Securities Legislation) so that any offer or sale of any of the Securities in
the Provinces, or any of them, will qualify for exemptions from prospectus,
registration and equivalent requirements, or exemptions from other applicable
requirements, as prescribed by the Canadian Securities Legislation in force at
the time when such offer or sale is made, provided that such offer or sale is
made pursuant to the Prospectus, as supplemented to the extent required by the
Canadian Securities Legislation (the Prospectus, as so supplemented, hereinafter
referred to as the "Canadian Offering Memorandum"), (C) with respect to
Securities offered or sold, or to be offered or sold, by such Underwriter, or
Securities purchased, or to be purchased, by such Underwriter, it has provided,
and will provide, investors, where required pursuant to the provisions of
applicable Canadian Securities Legislation, with (1) the Canadian Offering
Memorandum, and (2) a list of the documents filed by Occidental with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of the Prospectus, dated January 13, 1999, and will
obtain from each of such investors an acknowledgement in form satisfactory to
Occidental, and (D) with respect to any such sale of the Securities made by such
Underwriter, it will effect all necessary filings in connection with such sale,
including, without limitation, any required filings of (x) reports of trades and
(y) the Canadian Offering Memorandum, in each case with provincial securities
commissions, as required pursuant to the provisions of applicable Canadian
Securities Legislation.
SECTION 4. Covenants of the Offerors. Each of the Offerors jointly and
-------------------------
severally covenants with each Underwriter as follows:
(a) Notice of Certain Events. During the period from the date hereof
------------------------
to and including the time at which the distribution of the Securities is
completed, the Offerors
10
will notify the Representatives promptly (i) of the effectiveness of any
post-effective amendment to the Registration Statement, (ii) of the receipt
of any comments from the Commission with respect to the Registration
Statement, the Rule 462(b) Registration Statement or the Prospectus, (iii)
of any request by the Commission for any amendment to the Registration
Statement or the Rule 462(b) Registration Statement or any amendment or
supplement to the Prospectus or for additional information and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the Rule 462(b) Registration Statement or
the initiation of any proceedings for that purpose. The Offerors will make
every reasonable effort to prevent the issuance of any such stop order and,
if any such stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Proposed Filings. During the period from the date hereof to and
----------------
including the Closing Time, the Offerors will not file any amendment or
supplement to the Registration Statement or the Rule 462(b) Registration
Statement, or file any amendment or supplement to the Prospectus, in any
such case relating to the Securities, of which the Representatives shall
not previously have been advised or to which the Representatives shall
reasonably object in writing, unless, in the judgment of the Offerors and
its counsel, such amendment or supplement is necessary to comply with law.
(c) Copies of the Registration Statement, the Rule 462(b) Registration
------------------------------------------------------------------
Statement and the Prospectus. The Company will deliver to each of the
----------------------------
Underwriters one copy of the signed and as many conformed copies of the
Registration Statement (as originally filed), the Rule 462(b) Registration
Statement, if any, and of each amendment thereto relating to the Securities
(including the Incorporated Documents and any exhibits filed therewith or
incorporated by reference therein) as the Underwriters may reasonably
request. The Offerors will furnish to the Underwriters as many copies of
the Prospectus (as amended or supplemented) as the Underwriters shall
reasonably request so long as the Underwriters are required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase
the Securities.
(d) Revisions of Prospectus--Material Changes. So long as the
-----------------------------------------
Underwriters are required to deliver a Prospectus in connection with sales
or solicitations of offers to purchase the Securities, if any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Offerors and of counsel for the Underwriters, to
further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, prompt notice shall be given to the Underwriters, and
the Offerors will promptly prepare and file an amendment or supplement to
the Prospectus so that the Prospectus, as amended or supplemented, will not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to the Underwriters.
11
(e) Earnings Statements. Occidental will, on behalf of the Trust, make
-------------------
generally available to the Trust's security holders a consolidated earnings
statement of Occidental (which need not be audited) covering a period of at
least twelve months commencing after the Closing Time (but in no event
commencing later than 90 days after the Closing Time), as soon as is
reasonably practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) and Rule 158 of the
1933 Act.
(f) Blue Sky Qualifications. The Offerors will endeavor, in
-----------------------
cooperation with the Representatives, to qualify the Preferred Securities
and the Subordinated Debt Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may reasonably designate (provided no registration shall be
required in any jurisdiction outside the United States), and will maintain
such qualifications in effect for as long as may be required for the
distribution of the Preferred Securities and the Subordinated Debt
Securities; provided, however, that the Offerors will promptly notify the
Underwriters of any suspension of any such qualifications; and provided,
further, that the Offerors shall not be obligated to register or qualify as
a foreign corporation or take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) Filing of Prospectus. Immediately following the execution and
--------------------
delivery of this Agreement, the Offerors will prepare and file or transmit
for filing with the Commission in accordance with Rule 424(b), copies of a
supplement to the Prospectus containing the terms of the Securities and
such other information as the Underwriters and the Offerors deem
appropriate.
(h) Listing. The Offerors will use their reasonable best efforts to
-------
effect the listing of the Preferred Securities on the New York Stock
Exchange; if the Preferred Securities are exchanged for Subordinated Debt
Securities, Occidental will use its reasonable best efforts to effect the
listing of the Subordinated Debt Securities on the exchange on which the
Preferred Securities were then listed.
(i) Restriction on Sale of Securities. During a period of 30 days from
---------------------------------
the date of the Prospectus, neither the Trust nor Occidental will, without
the prior written consent of Merrill Lynch, 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 Preferred Securities or
any securities convertible into or exercisable or exchangeable for
Preferred Securities to investors other than institutional investors, or
file any registration statement under the 1933 Act with respect to any of
the foregoing. The foregoing sentence shall not apply to any of the
Securities to be sold hereunder.
SECTION 5. Payment of Expenses.
-------------------
(a) Expenses. Occidental will pay all expenses incident to the
--------
performance of each Offeror's obligations under this Agreement, including:
12
(i) the preparation and filing of the Registration Statement,
the Rule 462(b) Registration Statement and all amendments thereto and
the Prospectus, any Term Sheets and any amendments or supplements
thereto and all Incorporated Documents;
(ii) the preparation, filing and printing of this Agreement;
(iii) the preparation, printing, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters;
(iv) the fees and disbursements of Occidental's and the Trust's
counsel, accountants and other advisors;
(v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 4(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto;
(vi) the preparation, printing and delivery to the Underwriters
of copies of the Blue Sky Survey and any supplement thereto;
(vii) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.
relating to the offering made hereby;
(viii) the fees and expenses of the Debt Trustee, including the
fees and disbursements of counsel for the Debt Trustee, in connection
with the Indenture and the Subordinated Debt Securities;
(ix) the fees and expenses of the Property Trustee and Delaware
Trustee, including the fees and disbursements of counsel for the
Property Trustee and Delaware Trustee, in connection with the
Declaration and the Certificate of Trust;
(x) the fees and expenses of the Preferred Guarantee Trustee,
including the fees and disbursements of counsel for the Preferred
Guarantee Trustee;
(xi) any fees charged by rating agencies for the rating of the
Preferred Securities;
(xii) the fees and expenses incurred in connection with the
listing of the Preferred Securities and, if applicable, the
Subordinated Debt Securities on the New York Stock Exchange;
(xiii) the fees and expenses of any transfer agent or registrar
for the Securities; and
13
(xiv) the cost of qualifying the Preferred Securities with The
Depository Trust Company.
(b) Termination of Agreement. If this Agreement is terminated
------------------------
pursuant to any of the provisions hereof (otherwise than by notice given by
the Representatives in connection with the occurrence of any event set
forth in clauses (ii) through (iv) of Section 10(a)), Occidental shall
reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof and
the accuracy of the statements made in any certificate furnished by either
Offeror pursuant to the provisions hereof, to the performance and observance by
the Offerors of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) At the Closing Time, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall be instituted or threatened or, to the knowledge of the
Offerors or the Underwriters, contemplated by the Commission; no stop order
suspending the sale of the Securities in any jurisdiction designated by the
Representatives pursuant to Section 4(f) shall have been issued and no
proceedings for that purpose shall have been instituted or threatened or,
to the knowledge of the Offerors or the Underwriters, shall be
contemplated; any request of the Commission for additional information (to
be included in the Registration Statement or Prospectus or otherwise) shall
have been complied with to the satisfaction of the Representatives. The
supplement to the Prospectus referred to in Section 4(g) of this Agreement
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period, and prior to Closing Time the
Offerors shall have provided evidence satisfactory to the Representatives
of such timely filing.
(b) The Underwriters shall have received an opinion from Robert E.
Sawyer, Esq., Associate General Counsel for Occidental, dated as of the
Closing Time and in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Occidental has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware. Each
Principal Domestic Subsidiary is validly existing in good standing
under the laws of its state of incorporation.
(ii) Occidental has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement, the
Declaration, the Indenture and each of the Guarantee Agreements, to
borrow money as contemplated in this Agreement and the Indenture, and
to issue, sell and deliver the Subordinated Debt Securities, and to
purchase, own and hold the Common Securities issued by the Trust.
14
(iii) This Agreement, the Guarantee Agreements and the
Subordinated Debt Securities have been duly authorized, executed and
delivered by Occidental.
(iv) The Declaration has been duly authorized, executed and
delivered by the Guarantor and each of the Regular Trustees.
(v) The Indenture has been duly authorized, executed and
delivered by Occidental and (assuming the due authorization, execution
and delivery of the Indenture by the Debt Trustee) is a valid and
binding agreement of Occidental enforceable against Occidental in
accordance with its terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (B) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(vi) No consent or approval of any United States governmental
authority or other United States person or United States entity is
required in connection with the issuance or sale of the Securities
other than registration thereof under the 1933 Act, qualification of
the Indenture under the 1939 Act, and such registrations or
qualifications as may be necessary under the securities or Blue Sky
laws of the various United States jurisdictions in which the
Securities are to be offered or sold.
(vii) The Subordinated Debt Securities have been duly authorized
by Occidental and, when executed by Occidental and authenticated by
the Debt Trustee in accordance with the terms of the Indenture
(assuming the due authorization, execution and delivery of the
Indenture by the Debt Trustee) and issued to and paid for by the
Trust, will be entitled to the benefits of the Indenture and will be
valid and binding obligations of Occidental enforceable against
Occidental in accordance with their terms, except that such
enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether such enforcement is sought
in a proceeding in equity or at law).
(viii) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act and
the Indenture has been qualified under the 1939 Act, and, to the best
of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated.
(ix) The execution, delivery and performance of this Agreement,
the Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Debt Securities, the Guarantee Agreements
and the Guarantees and the consummation of the transactions
contemplated herein and therein and compliance by the Offerors with
their respective obligations hereunder and
15
thereunder will not conflict with or constitute a breach of or a
default (with the passage of time or otherwise) under (A) the Restated
Certificate of Incorporation or Bylaws of Occidental, in each case, as
amended, or the Declaration or the Certificate of Trust, (B) any
statute, law or regulation to which Occidental or any Principal
Domestic Subsidiary or any of their respective properties may be
subject or (C) any judgment, decree or order, known to such counsel,
after reasonable inquiry, of any court or governmental agency or
authority entered in any proceeding to which Occidental or any
Principal Domestic Subsidiary was or is now a party or by which it is
bound, except that such counsel may state that the opinion set forth
in clause (B) of this paragraph (ix) is limited to those statutes,
laws or regulations in effect on the date of such opinion which, in
such counsel's experience, are normally applicable to transactions of
the type contemplated by this Agreement and that such counsel
expresses no opinion as to the securities or Blue Sky laws of the
various jurisdictions in which the Securities are to be offered.
(x) The Registration Statement and the Rule 462(b)
Registration Statement as of their respective effective dates, and the
Prospectus, as of its date, including each Incorporated Document when
such Incorporated Document was filed or became effective, or if any
such Incorporated Document was amended, when such amendment was filed
or became effective, appeared on their face to be appropriately
responsive in all material respects to the applicable requirements of
the 1933 Act or the 1934 Act, as the case may be, except that in each
case such counsel need not express an opinion as to the financial
statements and schedules and other financial data included or
incorporated by reference therein or as to the Form T-1.
(xi) The statements in the Prospectus under the captions
"Certain Terms of the Subordinated Notes," "Description of Senior Debt
Securities," "Description of Subordinated Debt Securities,"
"Description of Preferred Securities Guarantees" and "Relationship
Among Preferred Securities, Preferred Securities Guarantees and
Subordinated Debt Securities Held by Each Trust," insofar as they
purport to summarize certain provisions of documents specifically
referred to therein, are in all material respects accurate summaries
of such provisions.
(xii) Except as set forth in the Prospectus (including the
Incorporated Documents), there is not pending or, to the knowledge of
such counsel, after reasonable inquiry, threatened any action, suit or
proceeding against Occidental or any of its subsidiaries before or by
any court or governmental agency or body, which is likely (to the
extent not covered by insurance) to have a material adverse effect on
the consolidated financial condition of Occidental and its
subsidiaries, taken as a whole.
(xiii) All of the issued and outstanding Common Securities of the
Trust are directly owned of record by the Guarantor free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for the
16
restrictions on transfer set forth in the Declaration and except that
such counsel may state that in rendering the opinion set forth in this
paragraph (xiii) regarding security interests, mortgages, pledges,
liens, encumbrances, claims and equities on the Common Securities of
the Trust such counsel has not undertaken any independent
investigation of the public record.
(xiv) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xv) To the best of such counsel's knowledge, after reasonable
inquiry, Occidental is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended.
(xvi) To the best of such counsel's knowledge, after reasonable
inquiry, the execution and delivery of this Agreement and the
Indenture by Occidental, the issuance and sale of the Subordinated
Debt Securities and the performance by Occidental of its obligations
under this Agreement and the Indenture will not conflict with or
constitute a breach of or a default (with the passage of time or
otherwise) under any agreement or instrument that is, individually or
in the aggregate, material to Occidental and its subsidiaries, taken
as a whole, and to which Occidental is a party or by which it is
bound.
(xvii) The Declaration and the Preferred Securities Guarantee
have been duly qualified under the 1939 Act.
(xviii) The Preferred Securities Guarantee Agreement has been
duly authorized, executed and delivered by the Guarantor and, assuming
due authorization, execution and delivery by The Bank of New York,
constitutes a valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except
as may be subject to or limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors' rights generally, (b) the effect of
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law,
(c) requirements that a claim with respect to the Preferred Securities
Guarantee denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect of
such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law,
(d) governmental authority to limit, delay or prohibit the making of
payments outside the United States or in a foreign currency, composite
currency or currency unit, and (e) the effect of general rules of
contract law that limit the enforceability of provisions requiring
indemnification of a party for liability for its own action or
inaction to the extent
17
the action or inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct.
In rendering such opinion such counsel may state that with respect to
certain matters he has relied upon advice of other counsel employed by
Occidental who are more familiar with such matters.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Offerors, outside
counsel for the Offerors, representatives of the independent public accountants
for Occidental, representatives of the Underwriters and counsel for the
Underwriters, at which conferences the contents of the Registration Statement,
the Rule 462(b) Registration Statement and Prospectus and related matters were
discussed and, although he is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Rule 462(b) Registration Statement
or the Prospectus (other than as set forth in paragraph (xi) above) and has not
made any independent check or verification thereof, on the basis of the
foregoing, nothing has come to such counsel's attention that leads him to
believe that either the Registration Statement (including the Incorporated
Documents) at the time such Registration Statement became effective, (or if an
amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed by Occidental with the Commission subsequent to the effectiveness of
the Registration Statement and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference therein), as the
case may be) or the Rule 462(b) Registration Statement at the time such Rule
462(b) Registration Statement 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, or that the
Prospectus (including the Incorporated Documents) as of its date and as of the
Closing Time contained or contains 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, except that such counsel need express no opinion with respect to the
financial statements, schedules and other financial data included or
incorporated by reference in the Registration Statement, the Rule 462(b)
Registration Statement or Prospectus or with respect to the Form T-1.
(c) The Underwriters shall have received an opinion from Skadden,
Arps, Slate, Meagher and Flom LLP, dated as of the Closing Time and in form
and substance satisfactory to counsel for the Underwriters, covering the
matters set forth in Exhibit A.
(d) The Underwriters shall have received an opinion from Emmet, Marvin
& Martin llp, dated as of the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, covering the matters set
forth in Exhibit B.
(e) The Underwriters shall have received an opinion from Richards,
Layton & Finger, P.A., dated as of the Closing Time and in form and
substance satisfactory to counsel for the Underwriters, covering the
matters set forth in Exhibit C.
18
(f) The Underwriters shall have received an opinion from Brown & Wood
llp, counsel to the Underwriters, dated as of the Closing Time and in form
and substance satisfactory to the Underwriters.
(g) Officer's and Trustee's Certificates. Except as contemplated in
------------------------------------
the Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Closing Time, there
shall not have been, since the date of the most recent consolidated
financial statements included or incorporated by reference in the
Prospectus, any material adverse change in the consolidated financial
condition of Occidental and its subsidiaries, taken as a whole. The
Underwriters shall have received (i) a certificate, dated as of the Closing
Time, of a Vice President of Occidental to the effect (a) that there has
been no such material adverse change, (b) that the representations and
warranties of Occidental in Section 1 hereof (other than Section 1(g)) are
true and correct in all material respects with the same force and effect as
though expressly made at and as of the date of such certificate, (c) that
Occidental has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder or under the Indenture at
or prior to the Closing Time and (d) that no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
best of such officer's knowledge, no proceedings for that purpose have been
initiated or are threatened by the Commission, and (ii) a certificate,
dated as of the Closing Time, of a Regular Trustee of the Trust, to the
effect (a) that the representations and warranties of the Trust in Section
1 hereof (other than Section 1(g)) are true and correct in all material
respects with the same force and effect as though expressly made at and as
of the date of such certificate, (b) that the Trust has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or under the Indenture at or prior to the Closing Time
and (c) that no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of such Regular Trustee's
knowledge, no proceedings for that purpose have been initiated or are
threatened by the Commission.
(h) Comfort Letter. On the date hereof, the Underwriters shall have
--------------
received a letter from Occidental's independent public accountants, dated
as of the date hereof and in form and substance satisfactory to the
Underwriters, containing statements and information of a type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the Prospectus;
and, if financial statements for any assets, business or entity acquired by
Occidental are included or incorporated by reference in the Registration
Statement or the Prospectus, the Underwriters shall have received a similar
"comfort letter" from a firm of independent public accountants, dated as of
the date hereof and in form and substance satisfactory to the
Representatives, with respect to such financial statements and any
financial information with respect to such assets, business or entity, as
the case may be, contained or incorporated by reference in the Registration
Statement and the Prospectus. Without limitation to the foregoing, the
letter delivered by Occidental's independent public accountants shall state
that nothing has come to their attention that caused them to believe that
at a specified date not more than five days prior to the date of such
letter, there was any change in the outstanding capital stock of Occidental
or any increase in consolidated
19
long-term debt of Occidental or any decrease in the stockholders' equity of
Occidental, in each case as compared with the amounts shown on the most
recent consolidated balance sheet of Occidental incorporated by reference
in the Registration Statement and Prospectus or, during the period from the
date of such balance sheet to a specified date not more than five days
prior to the date of such letter, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated net
sales and operating revenues or net income of Occidental, except in each
such case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as shall
have been agreed to by the Representatives and Occidental.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives
-------------------------
shall have received from Occidental's independent public accountants a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in their letter furnished pursuant to subsection (h) of
this Section, except that the specified date referred to shall be a date
not more than five days prior to Closing Time.
(j) Maintenance of Rating. At Closing Time, the Preferred Securities
---------------------
shall be rated in one of the four highest rating categories for long term
debt ("Investment Grade") by any nationally recognized statistical rating
agency, and the Trust shall have delivered to the Representatives a letter,
dated the Closing Time, from such nationally recognized statistical rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Preferred Securities have Investment Grade ratings.
(k) Approval of Listing. At Closing Time, the Preferred Securities
-------------------
shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance.
(l) Additional Documents. At Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with resolutions of Occidental's
Board of Directors authorizing and approving the issuance and sale of the
Securities and matters related thereto and such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(m) Conditions to Purchase of Option Securities. In the event that the
-------------------------------------------
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Offerors contained herein and the statements in any
certificates furnished by the Offerors hereunder shall be true and correct
as of each Delivery Date and, at the relevant Delivery Date, the
Representatives shall have received:
(i) Officers' and Trustee's Certificates. A certificate, dated
------------------------------------
such Delivery Date, of (i) a Vice President of Occidental and (ii) a
Regular Trustee of the Trust confirming that the certificates
delivered at the Closing Time pursuant to
20
Section 6(g) hereof, as the case may be, remain true and correct as of
such Delivery Date.
(ii) Opinions of Counsel for Company. The favorable opinions of
-------------------------------
(A) Robert E. Sawyer, Esq., Associate General Counsel for Occidental,
(B) Skadden, Arps, Slate, Meagher and Flom LLP, (C) Emmet, Marvin &
Martin llp and (D) Richards, Layton & Finger, P.A., in form and
substance satisfactory to counsel for the Underwriters, dated such
Delivery Date, relating to the Option Securities to be purchased on
such Delivery Date and otherwise to the same effect as the opinions
required by Section 6(b), 6(c), 6(d) and 6(e) respectively hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion
-----------------------------------
of Brown & Wood LLP, special counsel for the Underwriters, relating to
the Option Securities to be purchased on such Delivery Date and
otherwise to the same effect as the opinion required by Section 6(f)
hereof.
(iv) Bring-down Comfort Letter. A letter from Occidental's
-------------------------
independent public accountants, substantially the same in form and
substance as the letter furnished to the Representatives pursuant to
Section 5(h) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Delivery Date.
(n) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Delivery Date which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Offerors at any time at or prior to Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 5, and except that the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof and the provisions of
Section 9 hereof shall remain in effect.
SECTION 7. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
-------------------------------
severally indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever (including, subject to the limitations set forth in
subsection (c) below, the reasonable fees and disbursements of counsel
chosen by the Underwriters), as incurred, insofar as such loss,
liability, claim, damage or expense arises out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement 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 arises out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus or the omission or alleged
21
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 (including, subject to the limitations set forth in
subsection (c) below, the reasonable fees and disbursements of counsel
chosen by the Underwriters), as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever, insofar as such
loss, liability, claim, damage or expense arises out of any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
Occidental; and
(iii) against any and all expense whatsoever (including, subject
to the limitations set forth in subsection (c) below, the reasonable
fees and disbursements of counsel chosen by the Underwriters), as
incurred, reasonably incurred in investigating, preparing or defending
against any litigation, or 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;
provided, however, that this indemnity shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of or
based upon any untrue statement or omission or alleged untrue statement or
omission made in reliance upon the Form T-1 under the 1939 Act filed as an
exhibit to the Registration Statement; or (B) to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission in
the Prospectus, if such untrue statement or alleged untrue statement or
omission or alleged omission is corrected in an amendment or supplement to
the Prospectus and if, having previously been furnished by or on behalf of
the Trust or Occidental with copies of the Prospectus, as so amended or
supplemented, such Underwriter thereafter failed to deliver such
Prospectus, as so amended or supplemented, prior to or concurrently with
the sale of a Security or Securities to the person asserting such loss,
liability, claim, damage or expense who purchased such Security or
Securities that are the subject thereof from such Underwriter; or (C) as to
which such Underwriter may be required to indemnify the Trust or Occidental
pursuant to the provisions of subsection (c) of this Section 7; or (D) if
such loss, liability, claim, damage or expense is covered by any other
written agreement between the Trust or Occidental and such Underwriter
pertaining to the sale of the Securities pursuant to which such Underwriter
may be required to indemnify the Offerors for such loss, liability, claim,
damage or expense.
(b) Indemnification of the Trust. Occidental agrees to indemnify the
----------------------------
Trust against all loss, liability, claim, damage and expense whatsoever, as
due from the Trust under Section 7(a) hereunder.
(c) Indemnification of the Offerors. Each Underwriter agrees,
-------------------------------
severally and not jointly, to indemnify and hold harmless the Offerors,
their directors, their trustees,
22
each of their officers who signed the Registration Statement, and each
person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section 7, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Trust or Occidental by or on
behalf of any such Underwriter expressly for use in the Registration
Statement or the Prospectus.
(d) General.
-------
(1) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought against any Underwriter or any person controlling such
Underwriter, based upon the Registration Statement or the
Prospectus and with respect to which indemnity may be sought
against the Trust or Occidental pursuant to this Section 7, such
Underwriter or controlling person shall promptly notify
Occidental in writing, and Occidental shall assume the defense
thereof, including the employment of counsel and payment of all
expenses. Any such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall
be at the expense of such Underwriter or such controlling person,
unless (A) the employment of such counsel shall have been
specifically authorized in writing by Occidental, (B) Occidental
shall have failed to assume the defense and employ counsel or (C)
the named parties to any such action, suit or proceeding
(including any impleaded parties) shall include both such
Underwriter or such controlling person and the Trust or
Occidental, and such Underwriter or such controlling person shall
have been advised by such counsel that there may be one or more
legal defenses available to it that are different from, or
additional to, those available to the Trust or Occidental (in
which case, if such Underwriter or such controlling person
notifies Occidental in writing that it elects to employ separate
counsel at the expense of Occidental, Occidental shall not have
the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling
person, it being understood, however, that Occidental shall not,
in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for
all such Underwriters and all such controlling persons, which
firm shall be designated in writing by the Representatives, on
behalf of all such Underwriters and all such controlling
persons).
(2) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought
23
against the Trust or Occidental, any of their directors, officers
or trustees, or any person controlling either Occidental or the
Trust, with respect to which indemnity may be sought against any
Underwriter pursuant to this Section 7, such Underwriter shall
have the rights and duties given to Occidental by subsection
(d)(i) of this Section 7, and Occidental, the Trust, their
directors, officers and trustees and any such controlling person
shall have the rights and duties given to the Underwriters by
subsection (d)(i) of this Section 7.
SECTION 8. Contribution.
------------
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 7 hereof is for any reason
held to be unenforceable by the indemnified parties, although applicable in
accordance with its terms, each indemnified party shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by Occidental, on the one hand, and each of 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 Trust and
Occidental, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages and expenses. The relative benefits received by
Occidental, on the one hand, and the Underwriters, on the other hand, shall be
deemed to be in the same proportions as the total net proceeds from the sale of
the Securities (before deducting expenses) received by the Trust as set forth on
the cover page of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet, on the one hand, and the total underwriting
discounts and commissions received by each Underwriter, on the other hand, bear
to the total purchase price to the public of the Securities as set forth on such
cover page. The relative fault of the Trust or Occidental, on the one hand, and
the Underwriters, on the other hand, 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 Occidental or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Securities they have purchased hereunder, and not
joint. Notwithstanding the provisions of this Section 8, no Underwriter shall
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 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of Occidental, each officer of Occidental who signed the Registration
Statement, each trustee of the Trust and each person, if any, who controls
24
Occidental or the Trust within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as Occidental. Any party entitled to
contribution hereunder will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
8, notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have otherwise than under this Section 8.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers or trustees of the Offerors submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Offerors, and shall survive delivery of the Securities to
the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT.
------------------------
(a) The Representatives may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time if (i) between the
date hereof and the Closing Date, there shall have been any material
adverse change in the consolidated financial condition of the Trust or of
Occidental and its subsidiaries, taken as a whole, (ii) there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis, the effect of which shall be such as to
make it, in the reasonable judgment of the Representatives, impracticable
to market or to enforce contracts for sale of the Securities, (iii) trading
in any securities of Occidental shall have been suspended by the Commission
or a national securities exchange in the United States, or if trading
generally on the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, by said exchange
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities, (iv) since the date of this Agreement, any nationally
recognized securities rating agency in the United States shall have
publicly announced that it has (A) placed the Securities or Occidental's
long-term debt generally on what is commonly termed a "watch list" for
possible downgrading or (B) downgraded the Securities or Occidental's long-
term debt generally, or (v) the Offerors shall have failed to furnish or
cause to be furnished the certificates, opinions or letters referred to in
Section 6 hereof.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party
except as provided in Section 5 hereof.
SECTION 11. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Delivery Date to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or
25
more of the non-defaulting Underwriters, 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 set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Securities to be purchased on such date pursuant to this Agreement, 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 hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date pursuant to this Agreement, this
Agreement or, with respect to any Delivery Date which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Offerors to sell
the Option Securities to be purchased and sold on such Delivery Date 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
this Agreement, or, in the case of a Delivery Date which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Offerors shall have the
right to postpone Closing Time or the relevant Delivery Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 11.
SECTION 12. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if delivered, mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to them care of Merrill Lynch at 10877 Wilshire
Boulevard, Suite 1900, Los Angeles, California 90024, attention of Harry T.
McMahon III; notices to the Trust and Occidental shall be directed to them at
10889 Wilshire Boulevard, Los Angeles, California 90024, attention of Vice
President and Treasurer.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Trust and Occidental and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and Occidental and their respective successors and
the controlling persons and officers, directors and trustees referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Trust and Occidental and their respective successors, and said
controlling persons and officers, directors and trustees and their heirs and
legal
26
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. This Agreement shall be governed by and
----------------------
construed in accordance with the laws of the State of New York including,
without limitation, Section 5-1401 of the New York General Obligations Law.
Except as otherwise set forth herein, specified times of day refer to New York
City time.
SECTION 15. Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereoF.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trust a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters, the Trust and the Guarantor in accordance with its terms.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ J. R. Havert
-----------------------------------
Name: J. R. Havert
Title: Vice President and Treasurer
OXY CAPITAL TRUST I
By: /s/ J. R. Havert
-----------------------------
Name: J. R. Havert
Title: Regular Trustee
By: /s/ A. R. Leach
-----------------------------
Name: A. R. Leach
Title: Regular Trustee
By: /s/ John Zaylor
-----------------------------
Name: John Zaylor
Title: Regular Trustee
28
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
A.G. EDWARDS & SONS, INC.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Harry T. McMahon, III
---------------------------------------
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
29
SCHEDULE A
Name of Underwriter Number of
Securities
- ------------------------------------------------------------------------------------------------
Merrill Lynch, Pierce, Fenner & Smith 2,050,000
Incorporated................................................
A.G. Edwards & Sons, Inc................................................ 2,050,000
Morgan Stanley & Co. Incorporated....................................... 2,050,000
PaineWebber Incorporated................................................ 2,050,000
Prudential Securities Incorporated...................................... 2,050,000
Salomon Smith Barney Inc................................................ 2,050,000
ABN AMRO Incorporated................................................... 200,000
BT Alex. Brown Incorporated............................................. 200,000
Robert W. Baird & Co. Incorporated...................................... 200,000
Bear, Stearns & Co. Inc................................................. 200,000
BNY Capital Markets, Inc................................................ 200,000
CIBC Oppenheimer Corp................................................... 200,000
Credit Suisse First Boston Corporation.................................. 200,000
Dain Rauscher Incorporated.............................................. 200,000
Donaldson, Lufkin & Jenrette Securities Corporation..................... 200,000
EVEREN Securities, Inc.................................................. 200,000
Fleet Securities, Inc................................................... 200,000
Goldman, Sachs & Co..................................................... 200,000
Legg Mason Wood Walker, Incorporated.................................... 200,000
NationsBanc Montgomery Securities LLC................................... 200,000
OLDE Discount Corporation............................................... 200,000
Petrie Parkman & Co., Inc............................................... 200,000
Piper Jaffray Inc....................................................... 200,000
Raymond James & Associates, Inc......................................... 200,000
SG Cowen Securities Corporation......................................... 200,000
Scotia Capital Markets (USA) Inc........................................ 200,000
TD Securities (USA) Inc................................................. 200,000
Tucker Anthony Incorporated............................................. 200,000
Warburg Dillon Read LLC................................................. 200,000
Wheat First Securities, Inc............................................. 200,000
Advest, Inc............................................................. 100,000
J.C. Bradford & Co...................................................... 100,000
Craigie Incorporated.................................................... 100,000
Crowell, Weedon & Co.................................................... 100,000
Fahnestock & Co. Inc.................................................... 100,000
Fidelity Capital Markets, A Division of National Financial Services
Corp................................................................... 100,000
Fifth Third/The Ohio Company............................................ 100,000
First Albany Corporation................................................ 100,000
Gibraltar Securities Co................................................. 100,000
Gruntal & Co., L.L.C.................................................... 100,000
Sch A-1
Hilliard Lyons Inc...................................................... 100,000
Howe Barnes Investments, Inc............................................ 100,000
Wayne Hummer Investments LLC............................................ 100,000
Janney Montgomery Scott Inc............................................. 100,000
Kirkpatrick, Pettis, Smith, Polian Inc.................................. 100,000
McDonald Investments Inc., a KeyCorp Company............................ 100,000
McGinn, Smith & Co., Inc................................................ 100,000
Mesirow Financial, Inc.................................................. 100,000
Morgan Keegan & Company, Inc............................................ 100,000
David A. Noyes & Company................................................ 100,000
Parker/Hunter Incorporated.............................................. 100,000
The Robinson-Humphrey Company, LLC...................................... 100,000
Roney Capital Markets, A Division of First Chicago Capital Markets, Inc. 100,000
Scott & Stringfellow, Inc............................................... 100,000
Stephens Inc............................................................ 100,000
Stifel, Nicolaus & Company, Incorporated................................ 100,000
Stone & Youngberg....................................................... 100,000
Trilon International Inc................................................ 100,000
Utendahl Capital Partners, L.P.......................................... 100,000
----------
Total.................................................... 20,000,000
==========
Sch A-2
SCHEDULE B
OXY CAPITAL TRUST I
8.16% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount of $25 Per Preferred Security)
1. The initial public offering price per security for the Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to be paid
by the several Underwriters shall be $25.00, being an amount equal to the
initial public offering price set forth above; provided that the purchase price
per Preferred Security for any Option Securities purchased upon exercise of the
over-allotment option described in Section 2(b) shall be increased by an amount
per Preferred Security equal to any accrued distributions from, and including,
January 20, 1999 to, but excluding, the Delivery Date on which such Option
Securities are purchased.
3. The commission per Preferred Security to be paid by Occidental
Petroleum Corporation to the Underwriters for their commitments hereunder shall
be $.7875.
Sch B-1
Exhibit A
1. The statements in the Prospectus under the captions "Certain Terms of
the Preferred Securities" and "Description of Preferred Securities," insofar as
they constitute summaries of legal matters or documents, have been reviewed by
us and are accurate in all material respects.
2. The Trust is not an "investment company" within the meaning of the
1940 Act.
3. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; under the Delaware
Act and the Declaration, the Trust has the business trust power and authority to
(x) own property and conduct its business, all as described in the Prospectus,
(y) enter into and perform its obligations under the Underwriting Agreement, and
(z) issue and perform its obligations under the Preferred Securities and the
Common Securities.
4. Assuming the Declaration has been duly authorized, executed and
delivered by the Trustees and the Company, the Declaration is a valid and
binding obligation of the Company and the Regular Trustees, enforceable against
the Company and the Regular Trustees, in accordance with its terms, except to
the extent that (x) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (y) the rights to indemnity and
contribution contained therein may be limited by applicable law or the public
policy underlying such laws.
5. Under the Delaware Act and the Declaration, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
business trust action on the part of the Trust; and the Underwriting Agreement
has been duly executed by the Trust.
6. The Common Securities have been duly authorized for issuance by the
Declaration and, when issued and delivered pursuant to the Common Securities
Subscription Agreement, will be validly issued and represent undivided
beneficial interests in the assets of the Trust; and under the Delaware Act and
the Declaration, the issuance of the Common Securities is not subject to
preemptive rights.
7. The Preferred Securities have been duly authorized for issuance by
the Declaration and, when issued, executed and authenticated in accordance with
the Declaration and delivered and paid for in accordance with the Underwriting
Agreement, will be validly issued, and (subject to the qualifications set forth
herein) represent fully paid and non-assessable undivided beneficial interests
in the assets of the Trust; the holders of the Preferred Securities, in their
capacity as such, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; and under the Delaware Act and
the Declaration, the issuance of the Preferred Securities is not subject to
preemptive rights. We note that the Preferred Security
A-1
holders will be subject to the withholding provisions of Section 11.4 of the
Declaration and may be required to make payment or provide indemnity or security
as set forth in the Declaration.
8. The issuance and sale by the Trust of the Preferred Securities and
the Common Securities, the execution, delivery and performance by the Trust of
the Underwriting Agreement, the consummation of the transactions contemplated
therein, and compliance by the Trust with its obligations thereunder will not
violate any of the provisions of the Certificate of Trust or the Declaration or
Applicable Law. As used in this opinion, "Applicable Law" shall mean those
laws, rules and regulations of the State of Delaware that, in our experience,
are normally applicable to transactions of the type contemplated by the
Underwriting Agreement (other than state securities laws, as to which we express
no opinion) but without our having made any special investigation with respect
to any other laws, rules or regulations.
9. No authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the Trust under
Applicable Law in connection with the issuance and sale of the Common Securities
and the Preferred Securities or the purchase by the Trust of the Subordinated
Debt Securities except such as have been obtained and such as may be required by
state securities laws, as to which such we express no opinion.
10. The Trust will be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes.
11. The statements in the Prospectus under the caption "Certain United
States Federal Income Tax Consequences", insofar as they constitute summaries of
legal matters, have been reviewed by us and are accurate in all material
respects.
A-2
Exhibit B
(i) The Bank of New York ("BONY") is a national banking association
with trust powers, duly organized, validly existing and in good standing under
the laws of the United States, with all necessary power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of the
Declaration and the Preferred Securities Guarantee.
(ii) The execution, delivery and performance by BONY, in its capacity
as Property Trustee (the "Property Trustee"), of the Declaration and, in its
capacity as Preferred Guarantee Trustee, of the Preferred Securities Guarantee
Agreement, have been duly authorized by all necessary corporate action on the
part of the Property Trustee and the Preferred Guarantee Trustee, respectively.
The Declaration and the Preferred Securities Guarantee Agreement, when duly
executed and delivered by the Property Trustee and the Preferred Guarantee
Trustee, respectively, will constitute legal, valid and binding obligations of
the Property Trustee and the Preferred Guarantee Trustee, respectively,
enforceable against the Property Trustee and the Preferred Guarantee Trustee,
respectively, in accordance with their terms.
(iii) Based on an officer's certificate of BONY, there are no actions,
proceedings or investigations pending or threatened against or affecting BONY
before any court, arbitrator, administrative agency or other governmental
authority which, if adversely decided, would materially and adversely affect the
Property Trustee's ability to carry out the transactions contemplated in the
Declaration or the Preferred Guarantee Trustee's ability to carry out the
transactions contemplated in the Preferred Securities Guarantee Agreement.
(iv) The execution, delivery and performance of the Declaration and the
Preferred Securities Guarantee Agreement by the Property Trustee and the
Preferred Guarantee Trustee, respectively, do not conflict with, or constitute a
breach of, the articles of association or the certificate of incorporation of
BONY, as the case may be, or bylaws of BONY.
(v) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of the Declaration,
or by the Preferred Guarantee Trustee of the Preferred Securities Guarantee
Agreement.
B-1
Exhibit C
(i) The Bank of New York (Delaware) ("BONY-Delaware") is a Delaware
corporation duly organized, validly existing and in good standing under the laws
of Delaware, with full power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of the Declaration.
(ii) The execution, delivery and performance by BONY-Delaware, in its
capacity as Delaware Trustee (the "Delaware Trustee"), of the Declaration have
been duly authorized by all necessary corporate action on the part of the
Delaware Trustee. The Declaration, when duly executed and delivered by the
Delaware Trustee, will constitute the legal, valid and binding obligation of the
Delaware Trustee, enforceable against the Delaware Trustee, in accordance with
its terms.
(iv) Based on an officer's certificate of BONY-Delaware, there are no
actions, proceedings or investigations pending or threatened against or
affecting BONY-Delaware before any court, arbitrator, administrative agency or
other governmental authority which, if adversely decided, would materially and
adversely affect the Delaware Trustee's ability to carry out the transactions
contemplated in the Declaration.
(v) The execution, delivery and performance by the Delaware Trustee of
the Declaration does not conflict with, or constitute a breach of, the articles
of association or the certificate of incorporation of BONY-Delaware, as the case
may be, or bylaws of BONY-Delaware.
(vi) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Declaration.
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