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EXHIBIT 1(b)
U.S.$550,000,000 AGGREGATE PRINCIPAL AMOUNT
ANADARKO FINANCE COMPANY
6 3/4% SENIOR NOTES DUE 2011
ALL OBLIGATIONS FULLY AND UNCONDITIONALLY GUARANTEED
BY ANADARKO PETROLEUM CORPORATION
PURCHASE AGREEMENT
MAY 16, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. Anadarko Finance Company, an unlimited liability
company organized under the laws of the province of Nova Scotia, Canada (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to Credit Suisse First Boston Corporation (the initial
"PURCHASER") U.S.$550,000,000 aggregate principal amount of its 6 3/4% Senior
Notes due 2011 on the terms shown on Exhibit A attached hereto ("NOTES"), to be
issued under an indenture, dated as of April 26, 2001, as amended by a
supplemental indenture to be dated as of the closing of this transaction (the
"INDENTURE"), between the Company and The Bank of New York, as Trustee, on a
private placement basis pursuant to an exemption under Section 4(2) of the
Securities Act of 1933 (the "SECURITIES ACT"), to be fully and unconditionally
guaranteed by Anadarko Petroleum Corporation, a Delaware corporation
("ANADARKO") in accordance with the terms of the Indenture. Such guarantees are
referred to as the "GUARANTEES" and the Notes and the Guarantees are
collectively referred to as the "OFFERED SECURITIES". Each of the Company and
Anadarko hereby agrees with the Purchaser as follows:
2. Representations and Warranties of the Company and Anadarko. The
Company and Anadarko jointly and severally represent and warrant to, and agree
with, the Purchaser that:
(a) An offering circular relating to the Offered Securities
has been prepared by the Company. Such offering circular (the "OFFERING
CIRCULAR"), as amended or supplemented, together with the documents
incorporated by reference therein, is hereinafter referred to as the
"OFFERING DOCUMENT". The Offering Document does not, and will not as of
the Closing Date, include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company and Anadarko by the
Purchaser specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section
7(b) hereof. The documents incorporated in the Offering Circular, when
they were filed with the Securities and Exchange Commission (the
"COMMISSION") and all subsequent reports (collectively, the "EXCHANGE
ACT REPORTS") which have been filed by Anadarko with the Commission or
sent to shareholders pursuant to the Securities Exchange Act of 1934
(the "EXCHANGE ACT") did not include any untrue statement of a material
fact
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or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated by
reference or deemed to be incorporated by reference in the Offering
Circular, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange
Act and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading. Such documents, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) Anadarko has been duly incorporated and is an existing
corporation in good standing under the laws of Delaware, with corporate
power and authority to own its properties and conduct its business as
described in the Offering Document; and Anadarko is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on Anadarko and its subsidiaries
taken as a whole.
(c) The Company has been duly organized and is an existing
unlimited liability company in good standing under the laws of the
province of Nova Scotia, with corporate power and authority to own its
properties and conduct its business as described in the Offering
Document.
(d) Each significant subsidiary of Anadarko within the meaning
of Regulation S-X (a "SIGNIFICANT SUBSIDIARY") that is a corporation is
a duly incorporated and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, and each
Significant Subsidiary that is a limited liability company is duly
organized and validly existing under the laws of its jurisdiction of
organization, in each case with full power and authority to own, lease
and operate its properties and conduct its business as described in the
Offering Document. Each Significant Subsidiary is duly qualified or
licensed to do business as a foreign corporation or other applicable
entity in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification or licensing, except to the extent that the failure to be
so qualified or licensed or be in good standing would not have a
material adverse effect on Anadarko and its subsidiaries taken as a
whole. The issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable, except as disclosed in the Offering Document,
and is owned by Anadarko free and clear of any mortgages, liens or
similar encumbrances.
(e) The Company owns no equity interest in any other
corporation.
(f) The Indenture has been duly authorized by the Company and
Anadarko and (assuming due authorization, execution and delivery
thereof by the Trustee) when executed and delivered by the Company and
Anadarko will constitute a valid and binding agreement of the Company
and Anadarko enforceable against the Company and Anadarko in accordance
with its terms, except to the extent enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws now or hereafter in effect relating to or
affecting creditors' rights generally and general principles of equity
(whether enforcement is sought in equity or at law); and the Indenture
conforms in all material respects to the description thereof contained
in the Offering Circular.
(g) The Registration Rights Agreement, to be dated the Closing
Date, between the Company, Anadarko and the Purchaser (the
"REGISTRATION RIGHTS AGREEMENT") has been duly authorized by the
Company and Anadarko; when the Registration Rights Agreement is duly
executed and delivered by the Company and Anadarko, assuming due
authorization, execution and delivery by the Purchaser, it will be a
valid and binding agreement of the Company and Anadarko enforceable
against the Company and Anadarko in accordance with its terms, except
to the extent enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws now or hereafter in effect relating to or affecting creditors'
rights generally and general principles of equity (whether enforcement
is sought in equity or at law) and except with respect to the rights of
indemnification and contribution thereunder, which enforcement thereof
may be limited by federal or state securities laws or the policies
underlying such laws; and the Registration Rights Agreement conforms in
all material respects to the description thereof contained in the
Offering Circular.
(h) The Notes and Guarantees have been duly authorized for
issuance and sale by the Company and Anadarko, as the case may be,
pursuant to this Agreement (or will have been so authorized prior to
each
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issuance of Offered Securities) and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration thereof in accordance
with this Agreement, the Offered Securities will be valid and binding
obligations of the Company and Anadarko enforceable against the Company
and Anadarko and entitled to the benefits of the Indenture, except to
the extent enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, and
general principles of equity (whether enforcement is sought in equity
or at law); and the Notes and Guarantees conform in all material
respects to the description thereof contained in the Offering Circular.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and Anadarko and constitutes a valid and
binding agreement of the Company and Anadarko.
(j) Neither Anadarko nor any Significant Subsidiary is in
violation of its certificate of incorporation or by-laws or, in the
case of a limited liability company, its organizational documents, and
Anadarko is not in default in the performance or observance of any
obligation in any indenture, mortgage, evidence of indebtedness or
similar agreement or instrument to which it is a party or by which it
or any of its properties may be bound, which default would have a
material adverse effect on Anadarko and its subsidiaries taken as a
whole. The execution and delivery of this Agreement and the Indenture
and the consummation of the transactions contemplated herein and
therein and the incurrence of the obligations herein and therein set
forth, have been or will be duly authorized by all necessary corporate
action. The execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement, the issuance and sale
of the Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under the organizational
documents of Anadarko and the Company or, except for any such breach,
violation or default that would not have a material adverse effect on
Anadarko and its subsidiaries taken as a whole, any statute, rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company, Anadarko or
any of their properties, or any agreement or instrument to which the
Company or Anadarko is a party or by which the Company or Anadarko is
bound or to which any of the properties of the Company or Anadarko is
subject, and the Company and Anadarko have full corporate power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(k) The accountants who certified the financial statements
included or incorporated in the Offering Document are independent
public accountants as required by the Securities Act and the
regulations, thereunder.
(l) The consolidated financial statements, together with
related schedules and notes, included or incorporated in the Offering
Document present fairly the consolidated financial position of Anadarko
and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their financial position for the periods
specified; such financial statements have been prepared in conformity
with generally accepted accounting principles consistently applied
during the period, except as stated therein.
(m) Since the respective dates as of which information is
given or incorporated by reference in the Offering Document, except as
otherwise stated therein or contemplated thereby, there has been (A) no
material adverse change in the condition, financial or otherwise, of
Anadarko and its subsidiaries taken as a whole and (B) no litigation or
governmental proceeding instituted or, to the knowledge of Anadarko,
threatened against Anadarko or any subsidiary which would reasonably be
expected to have any material adverse effect on the financial condition
of Anadarko and its subsidiaries taken as a whole.
(n) Anadarko and its subsidiaries possess such valid
franchises, certificates of convenience and necessity, easements,
rights-of-way, operating rights, licenses, permits, consents,
authorizations and orders of governmental political subdivisions or
regulatory authorities as, in the opinion of Anadarko, are necessary to
carry on the respective businesses of each as described in the Offering
Circular, except where the failure to possess such would not
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of Anadarko and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
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(o) Except as disclosed in the Offering Document and except
for the registration rights agreements entered into in connection with
the ZYP-CODES and the 6 3/4% Senior Notes due 2011 and 7 1/2% Senior
Notes due 2031 issued by the Company, there are no contracts,
agreements or understandings between Anadarko or any of its affiliates
and any person granting such person the right to require Anadarko or
any of its affiliates to file a registration statement under the
Securities Act with respect to any securities of Anadarko or any of its
affiliates owned or to be owned by such person or to require Anadarko
or any of its affiliates to include such securities in the securities
registered pursuant to the Registration Rights Agreement or in any
securities being registered pursuant to any other registration
statement filed by Anadarko or any of its affiliates under the
Securities Act.
(p) Except (i) with respect to the transactions contemplated
by the Registration Rights Agreement, as may be required under the
Securities Act and the Trust Indenture Act and (ii) as required by the
securities or "blue sky" laws of any jurisdiction in connection with
the purchase and distribution of the Offered Securities by the
Purchaser, no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement,
the Indenture and the Registration Rights Agreement (the "OPERATIVE
DOCUMENTS") by the Company and Anadarko and the consummation of the
transactions contemplated hereby and thereby.
(q) The Company and Anadarko are not, and upon application of
the net proceeds from the sale of the Offered Securities as set forth
in the Offering Circular, will not be, an "investment company" within
the meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (the "INVESTMENT
COMPANY ACT").
(r) Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 4 and its compliance
with the agreements set forth therein, it is not necessary, in
connection with the issuance and sale of the Offered Securities to the
Purchaser, the offer, resale and delivery of the Offered Securities by
the Purchaser, in each case, in the manner contemplated by this
Agreement, the Indenture and the Offering Circular, to register the
Offered Securities under the Securities Act or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (collectively, the "TRUST INDENTURE ACT").
(s) None of Anadarko or any of its affiliates (other than the
Purchaser in connection with the transactions contemplated by this
Agreement about which no representation is made by the Company or
Anadarko) has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Securities Act) which is or will be
integrated with the sale of the Offered Securities in a manner that
would require the registration under the Securities Act of the Offered
Securities.
(t) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Notes or Guarantees
are listed on any national securities exchange registered under Section
6 of the Exchange Act or quoted on an automated inter-dealer quotation
system.
(u) None of Anadarko or any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act ("REGULATION D")),
has, directly or through an agent, engaged in any form of general
solicitation or general advertising in connection with the offering of
the Offered Securities (as those terms are used in Regulation D) under
the Securities Act or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and the Company and
Anadarko have not entered into any contractual arrangement with respect
to the distribution of the Offered Securities except for this Agreement
and the Company and Anadarko will not enter into any such arrangement.
(v) None of Anadarko, its affiliates or any person acting on
its or their behalf (other than the Purchaser in connection with this
Agreement) has engaged or will engage in any directed selling efforts
(as that term is defined in Regulation S) with respect to the Offered
Securities and each of Anadarko and its affiliates and any person
acting on its or their behalf (other than the Purchaser in connection
with this Agreement) has complied and will comply with the offering
restrictions requirement of Regulation S.
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(w) The Company is not subject to Section 13 or 15(d) of the
Exchange Act.
(x) There is no "substantial U.S. market interest" as defined
in Rule 902(n) of Regulation S in the Company's debt securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Company, at a purchase
price equal to a percentage of the principal amount thereof plus accrued
interest as reflected on Exhibit A hereto.
The Company and Anadarko will deliver against payment of the purchase
price the Offered Securities in the form of one or more permanent global
securities in definitive form (the "GLOBAL SECURITIES") deposited with the
Trustee as custodian for The Depository Trust Company ("DTC") and registered in
the name of Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Offering Document. Payment for the
Offered Securities shall be made by the Purchaser in Federal (same day) funds by
wire transfer to an account at a bank acceptable to the Purchaser drawn to the
order of the Company at the office of Hughes Hubbard & Reed LLP, One Battery
Park Plaza, New York, N.Y. at 9 A.M. (New York time), on May 23, 2001, or at
such other time, not later than seven full business days thereafter, as the
Purchaser and Anadarko determine, such time being herein referred to as the
"CLOSING DATE", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the office of the Purchaser at
least 24 hours prior to the Closing Date.
4. Representations by Purchaser; Resale by Purchaser.
(a) The Purchaser represents and warrants to Anadarko and the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) The Purchaser acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be
offered or sold within the United States except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. The Purchaser represents and agrees
that it has not offered or sold, and will not offer or sell, any
Offered Securities within the United States, except in accordance with
Rule 144A or Rule 903 under the Securities Act. Accordingly, neither
the Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling
efforts with respect to the Offered Securities. Terms used in this
subsection (b) have the meanings given to them by Regulation S.
(c) The Purchaser agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except with
the prior written consent of Anadarko.
(d) The Purchaser agrees that it and each of its affiliates
will not offer or sell the Offered Securities by means of any form of
general solicitation or general advertising, within the meaning of Rule
502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. The Purchaser
agrees, with respect to resales made in reliance on Rule 144A of any of
the Offered Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Offered Securities has been made in
reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
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5. Certain Agreements of the Company and Anadarko. Each of the Company
and Anadarko agrees with the Purchaser that:
(a) Anadarko will advise the Purchaser promptly of any
proposal to amend or supplement the Offering Document. If, at any time
prior to the completion of the resale of the Offered Securities by the
Purchaser any event occurs as a result of which the Offering Document
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, Anadarko and the Company promptly
will notify the Purchaser of such event and promptly will prepare, at
their own expense, an amendment or supplement which will correct such
statement or omission.
(b) Anadarko will furnish to the Purchaser copies of the
Offering Document and all amendments and supplements to such document,
in each case as soon as available and in such quantities as the
Purchaser requests. At any time when Anadarko is not subject to Section
13 or 15(d) of the Exchange Act, Anadarko will promptly furnish or
cause to be furnished to the Purchaser and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. Anadarko will
pay the expenses of printing and distributing to the Purchaser all such
documents.
(c) Anadarko will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such states in the United States as the
Purchaser designates and will continue such qualifications in effect so
long as required for the resale of the Offered Securities by the
Purchaser, provided that Anadarko and the Company will not be required
to qualify as a foreign corporation or otherwise subject itself to a
general consent to service of process or taxation in any jurisdiction
in which it is not otherwise so qualified or subject.
(d) During the period of five years hereafter, Anadarko will
furnish to the Purchaser, as soon as practicable after the end of each
fiscal year, a copy of Anadarko's annual report to shareholders for
such year; and Anadarko will furnish to the Purchaser (i) as soon as
available, a copy of each report and any definitive proxy statement of
Anadarko filed with the Commission under the Exchange Act or mailed to
shareholders ; provided, however, that Anadarko shall not be required
to provide the Purchaser with any such reports or similar forms that
have been filed with the Commission by electronic transmission pursuant
to EDGAR.
(e) During the period of two years after the Closing Date,
Anadarko will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the
Offered Securities that have been reacquired by any of them.
(f) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities (as defined in the Registration Rights Agreement),
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indenture, the Offering Document
and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Offered Securities and
as applicable the Exchange Securities; (iii) any expenses (including
fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities or the Exchange Securities for
sale under the laws of such jurisdictions as the Purchaser designates
and the printing of memoranda relating thereto, (iv) any fees charged
by investment rating agencies for the rating of the Offered Securities
or the Exchange Securities and (v) expenses incurred in distributing
the Offering Document (including any amendments and supplements
thereto) to the Purchaser. The Company will reimburse the Purchaser for
all travel expenses of the Purchaser and the Company's officers and
employees and any other expenses of the Purchaser and the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
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(g) In connection with the offering, until the Purchaser shall
have notified Anadarko of the completion of the resale of the Offered
Securities, neither Anadarko nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to
purchase any Offered Securities; and neither Anadarko nor any of its
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Offered Securities.
(h) For a forty-five (45) day period commencing on May 16,
2001, without the Purchaser's Consent, the Company and Anadarko will
not issue or cause to be issued senior debt securities having a
maturity of 10 years or more, other than:
o the notes offered hereby;
o any debt securities similar to the notes
offered hereby and issued in exchange
therefore;
o Zero Yield Puttable Contingent Debt
Securities due 2021 issued in exchange for
similar debt securities issued by Anadarko
on March 13, 2001;
o 6 3/4% Senior Notes due 2011 and 7 1/2%
Senior Notes due 2031 of the Company,
guaranteed by Anadarko, issued in exchange
for similar debt securities issued by the
Company on April 26, 2001; or
o any debt securities that are convertible
into equity securities.
(i) The Company and Anadarko will indemnify and hold harmless
the Purchaser against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the creation, issuance and
sale of the Offered Securities and on the execution and delivery of
this Agreement. All payments to be made by the Company and Anadarko
hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Company or Anadarko is compelled by law to deduct
or withhold such taxes, duties or charges. In that event, the Company
shall pay such additional amounts as may be necessary in order that the
net amounts received after such withholding or deduction shall equal
the amounts that would have been received if no withholding or
deduction had been made.
6. Conditions of the Obligation of the Purchaser. The obligation of the
Purchaser to purchase and pay for the Offered Securities will be subject to the
accuracy of the representations and warranties on the part of the Company and
Anadarko herein, to the accuracy of the statements of officers of the Company
and Anadarko made pursuant to the provisions hereof, to the performance by the
Company and Anadarko of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchaser shall have received a letter, dated the
Closing Date, of KPMG LLP confirming that they are independent public
accountants with respect to Anadarko within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements
examined by them and included in the Offering Document and in
the Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the applicable published rules and
regulations thereunder; and
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Exchange Act Reports; and stating the conclusions and
findings of such firm with
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respect to the financial information and other matters
ordinarily covered by accountant's "comfort letters" to
underwriters in connection with registered public offerings,
in form and substance satisfactory to the Purchaser.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any material adverse
change in the condition, financial or otherwise, of Anadarko and its
subsidiaries taken as a whole, or in the earnings, business or
operations of Anadarko and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, or (ii) any new
outbreak of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in
the reasonable judgment of the Purchaser, impracticable to market the
Offered Securities or enforce contracts for the sale of Offered
Securities, or (iii) trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of such exchanges
or by order of the Commission or any other governmental authority, or a
banking moratorium has been declared by either federal or New York
authorities. In the event of any such termination, the provisions of
Sections 5(f), 6, 7 and 8 shall remain in effect.
(c) The Purchaser shall have received an opinion, dated
Closing Date, as follows:
(i) from Andrews & Kurth LLP, as counsel to the
Company, its written opinion, addressed to the Purchaser, in
substantially the form delivered in the 6 3/4% Senior Notes
due 2011 and 7 1/2% Senior Notes due 2031 transaction, but
with respect to the Offered Securities.
(ii) from the General Counsel or an Assistant General
Counsel of the Company, his written opinion addressed to the
Purchaser, in substantially the form delivered in the 6 3/4%
Senior Notes due 2011 and 7 1/2% Senior Notes due 2031
transaction, but with respect to the Offered Securities.
(iii) from McInnes Cooper, as Canadian counsel to the
Company, its written opinion addressed to the Purchaser, in
substantially the form delivered in the 6 3/4% Senior Notes
due 2011 and 7 1/2% Senior Notes due 2031 transaction, but
with respect to the Offered Securities.
(iv) from Hughes Hubbard & Reed LLP, as counsel to
the Purchaser, its written opinion addressed to the Purchaser,
in substantially the form delivered in the 6 3/4% Senior Notes
due 2011 and 7 1/2% Senior Notes due 2031 transaction, but
with respect to the Offered Securities.
(d) The Purchaser shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company and Anadarko in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company and Anadarko in this Agreement are true and correct, that
the Company and Anadarko have complied with all agreements and
satisfied all conditions on their parts to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
date of the most recent financial statements in the Exchange Act
Reports there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of Anadarko and its subsidiaries taken as a whole except as
set forth in or contemplated by the Offering Document or as described
in such certificate.
(e) Each of the Company and Anadarko shall have duly executed
the Operative Documents to which it is a party and delivered such
Operative Documents to the Purchaser in form and substance reasonably
satisfactory to the Purchaser.
The Company and Anadarko will furnish the Purchaser with such conformed
copies of such opinions, certificates, letters and documents as the Purchaser
reasonably requests. The Purchaser may in its sole discretion waive compliance
with any conditions to its obligations hereunder.
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7. Indemnification and Contribution.
(a) The Company and Anadarko, jointly and severally, agree to
indemnity and hold harmless the Purchaser and each person, if any, who
controls the Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Document (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to the Purchaser furnished to the
Company in writing by the Purchaser expressly for use therein.
(b) The Purchaser agrees to indemnify and hold harmless the
Company, Anadarko and each person, if any, who controls the Company and
Anadarko within the meaning of either Section 15 and their respective
officers and directors of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
Company and Anadarko to the Purchaser, but only with reference to
information relating to the Purchaser furnished to the Company in
writing by the Purchaser expressly for use in the Offering Document or
any amendments or supplements thereto, it being understood and agreed
that the only such information furnished by the Purchaser consists of
the second and third sentences of the eighth paragraph under the
caption "Plan of Distribution" in the Offering Circular and the tenth
paragraph thereof.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Purchaser, in the case of parties
indemnified pursuant to Section 7(a), and by Anadarko, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
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(d) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and Anadarko on the one hand and the Purchaser on the other hand from
the offering of the Offered Securities or (ii) if the allocation
provided by clause 7(d)(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 7(d)(i) above but also the relative
fault of the Company and Anadarko on the one hand and of the Purchaser
on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received
by the Company and Anadarko on the one hand and the Purchaser on the
other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Offered Securities (before deducting
expenses) received by the Company and Anadarko and the total
underwriting discounts and commissions received by the Purchaser, in
each case as set forth in Exhibit A, and in the cross receipt, bear to
the aggregate offering price of the Offered Securities. The relative
fault of the Company and Anadarko on the one hand and the Purchaser 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 the Company and Anadarko or by the Purchaser
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and Anadarko and the Purchaser agree that it
would not be just or equitable if contribution pursuant to this Section
7 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Purchaser shall
not be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it
and distributed to the public were offered to the public exceeds the
amount of any damages that the Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements
of the Company and Anadarko contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of the Purchaser or any person controlling the Purchaser or by
or on behalf of the Company or Anadarko, or their officers or directors
or any person controlling the Company or Anadarko and (iii) acceptance
of and payment for any of the Offered Securities.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, Anadarko and its officers and of the Purchaser set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Offered Securities by the Purchaser is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Purchaser pursuant to Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Purchaser is not consummated for any reason other than
solely because of the occurrence of any event specified in clause (iii) of
Section 6(b), the Company will reimburse the Purchaser for all
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out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Purchaser will be mailed, delivered or telegraphed and confirmed to
the Purchaser at Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Transactions Advisory Group, or, if sent to the Company or Anadarko, will be
mailed, delivered or telegraphed and confirmed to it at 17001 Northchase Drive,
Houston, Texas, 77060, Attention: Vice President and Treasurer.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties hereto.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
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If the foregoing is in accordance with the Purchaser's understanding of
our agreement, kindly sign and return to each of the Company and Anadarko one of
the counterparts hereof, whereupon it will become a binding agreement by and
among the Company, Anadarko and the Purchaser in accordance with its terms.
Very truly yours,
ANADARKO FINANCE COMPANY
By: /s/ ALBERT L. RICHEY
Treasurer
ANADARKO PETROLEUM CORPORATION
By: /s/ ALBERT L. RICHEY
Vice President and Treasurer
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ROME ARNOLD
Managing Director
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EXHIBIT A
SELECT TERMS AND CONDITIONS:
$550 MILLION 6 3/4% SENIOR NOTES DUE 2011
- ------------------------------- ----------------------- -------------------------- --------------------------
MATURITY PRINCIPAL AMOUNT PRICE TO PURCHASER PRICE TO THE PUBLIC
(% of Principal Amount) (% of Principal Amount)
- ------------------------------- ----------------------- -------------------------- --------------------------
10-Year: May 1, 2011 US$550,000,000 99.634% 99.634%
- ------------------------------- ----------------------- -------------------------- --------------------------