EXHIBIT 5(a)
ANDREWS & KURTH
MAYOR, DAY & CALDWELL
L.L.P.
AUSTIN ATTORNEYS TELEPHONE: 713.220.4200
DALLAS 600 TRAVIS, SUITE 4200 FACSIMILE: 713.220.4285
LONDON HOUSTON, TEXAS 77002
LOS ANGELES
NEW YORK
THE WOODLANDS
WASHINGTON, D.C.
August 6, 2002
Board of Directors
Anadarko Petroleum Corporation
1201 Lake Robbins Drive
The Woodlands, Texas 77380-1046
Ladies and Gentlemen:
We have acted as special counsel to Anadarko Petroleum Corporation, a
Delaware corporation ("Anadarko Petroleum"), and Anadarko Finance Company, an
unlimited liability company organized under the laws of the Province of Nova
Scotia, Canada and a wholly-owned, indirect subsidiary of Anadarko Petroleum
("Anadarko Finance"), in connection with the preparation of a registration
statement on Form S-3 (Registration No. 333-86356) (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933, as amended. The Registration Statement
relates to the offering from time to time, as set forth in the Registration
Statement, the form of prospectus contained therein (the "Prospectus") and one
or more supplements to the Prospectus (each, a "Prospectus Supplement"), (A) by
Anadarko Petroleum of, among other securities, (i) common stock (the "Common
Stock"), (ii) warrants (the "Warrants"), (iii) preferred stock (the "Preferred
Stock"), (iv) depositary shares representing Preferred Stock (the "Depositary
Shares") evidenced by depositary receipts (the "Depositary Receipts"), (v)
purchase contracts (the "Purchase Contracts"), (vi) stock purchase units (the
"Purchase Units"), (vii) guarantees (the "Trust Preferred Guarantees") with
respect to the Trust Preferred Securities (as defined below), (viii) guarantees
(the "Anadarko Finance Guarantees" and together with the Trust Preferred
Guarantees, the "Guarantees") with respect to the Anadarko Finance Debt
Securities (as defined below) and (ix) debt securities (the "Anadarko Petroleum
Debt Securities") of Anadarko Petroleum, and (B) by Anadarko Finance of (x) debt
securities of Anadarko Finance (the "Anadarko Finance Debt Securities" and
together with the Anadarko Petroleum Debt Securities, the "Debt Securities"),
and (C) by one or more trusts of (xi) specified trust preferred securities (the
"Trust Preferred Securities"), having an aggregate initial public offering price
(for all such securities issued under the Registration Statement) not to exceed
U.S. $1,000,000,000, on terms to be determined at the time of the offering. The
Common Stock, Warrants, Preferred Stock, Depositary Shares, Purchase Contracts,
Purchase Units, Guarantees, Debt Securities and Trust Preferred Securities are
referred to herein collectively as the "Securities." All capitalized terms
Board of Directors
Anadarko Petroleum Corporation
August 6, 2002
Page 2
used but not defined herein have the respective meanings assigned to such terms
in the Registration Statement or in the applicable Indenture (as defined below),
as the case may be.
The Warrants will be issued pursuant to a warrant agreement (the
"Warrant Agreement") between Anadarko Petroleum and a warrant agent. The
Depositary Shares will be issued pursuant to a deposit agreement (the "Deposit
Agreement") between Anadarko Petroleum and a depositary agent. The Purchase
Contracts will be issued pursuant to a purchase contract agreement (the
"Purchase Contract Agreement") between Anadarko Petroleum and a purchase
contract agent. The Trust Preferred Guarantees will be issued pursuant to a
guarantee agreement (the "Guarantee Agreement") between Anadarko Petroleum and a
guarantee trustee. The Anadarko Finance Guarantees will be issued pursuant to a
senior indenture (the "Anadarko Finance Indenture" and together with the Senior
Indenture and the Subordinated Indenture, the "Indentures") among Anadarko
Finance, Anadarko Petroleum and The Bank of New York, as trustee. The Anadarko
Petroleum Debt Securities will be issued pursuant to (i) a senior indenture (the
"Senior Indenture") or (ii) a subordinated indenture (the "Subordinated
Indenture"), in each case, between Anadarko Petroleum and The Bank of New York,
as trustee. The Anadarko Finance Debt Securities will be issued pursuant to the
Anadarko Finance Indenture.
In arriving at the opinions expressed below, we have examined the
following:
(i) the Certificate of Incorporation and Bylaws of Anadarko
Petroleum, in each case as amended to date,
(ii) the Registration Statement,
(iii) the Prospectus,
(iv) the Indentures in the forms filed as Exhibits 4(a), 4(c) and
4(e) to the Registration Statement,
(v) the Deposit Agreement in the form filed as Exhibit 4(t) to the
Registration Statement, and
(vi) the originals or copies certified or otherwise identified to our
satisfaction of such other instruments and other certificates of public
officials, officers and representatives of Anadarko Petroleum, Anadarko Finance
and such other persons, and we have made such investigations of law, as we have
deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed and have not
verified (i) the genuineness of the signatures on all documents that we have
examined, (ii) the legal capacity of all natural persons, (iii) the authenticity
of all the documents supplied to us as originals, and (iv) the conformity to the
authentic originals of all documents supplied to us as certified or photostatic
or faxed copies. In conducting our examination of documents executed by parties
other than Anadarko Petroleum, we have assumed that such parties had the power,
corporate, unlimited liability company or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate, unlimited liability company or other, and the due
execution and delivery by such parties of such documents and
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Anadarko Petroleum Corporation
August 6, 2002
Page 3
that, to the extent such documents purport to constitute agreements, such
documents constitute valid and binding obligations of such parties.
In rendering the opinions expressed below with respect to the
Securities, we have assumed that:
(i) any Certificate of Designation in respect of Preferred Stock will
be in conformity the Certificate of Incorporation and By-laws of Anadarko
Petroleum and with applicable law,
(ii) the consideration paid for any shares of Common Stock or
Preferred Stock or Depositary Shares will comply with Section 153(a) or (b) of
the Delaware General Corporation Law (the "DGCL"), the third sentence of Section
152 of the DGCL, and Section 3 of Article IX of the Delaware Constitution, or
(in each case) any successor provision;
(iii) any Supplemental Indenture to any of the Indentures and any Board
Resolution and/or any Officers' Certificate executed and delivered pursuant to
any of the Indentures, in any such case, pursuant to which any Debt Securities
are issued, will comply with such Indenture as theretofore supplemented, and the
form and terms of such Debt Securities will comply with such Indenture as then
supplemented (including by any such Supplemental Indenture) and any such Board
Resolution and/or Officers' Certificate; and
(iv) the form and terms of such Debt Securities, when established, the
form and terms of any Warrants, Depositary Shares, Depositary Receipts, Purchase
Contracts, Purchase Units or Guarantees, and the form and terms of any and all
Securities or other securities (or other obligations, rights, currencies,
commodities or other subject matter) guaranteed thereby (in the case of the
Guarantees) or comprising the same or subject thereto (in the case of the
Warrants, Purchase Contracts and Units), the issuance, sale and delivery thereof
by Anadarko Petroleum or Anadarko Finance, or the applicable trust, as the case
may be, and the incurrence and performance of any issuer's respective
obligations thereunder or in respect thereof (including, without limitation, its
obligations under any related Warrant Agreement, Deposit Agreement, Purchase
Contract Agreement, unit agreement, Guarantee Agreement or Indenture) in
accordance with the terms thereof, will comply with, and will not violate,
Anadarko Petroleum's Certificate of Incorporation or By-laws, Anadarko Finance's
organic documents, the declaration of trust of any trust, or any applicable law,
rule, regulation, order, judgment, decree, award, or agreement binding upon the
applicable issuer or guarantor, or to which the issuance, sale and delivery of
such Securities, or the incurrence and performance of such obligations, may be
subject, or violate any applicable public policy, or be subject to any defense
in law or equity, and (without limiting the generality of the foregoing) Section
5-501.6.b of the New York General Obligations Law will apply in the case of all
such Debt Securities and Guarantees (and, with respect to the Trust Preferred
Guarantees, also in the case of the obligations guaranteed thereby). In
addition, except in the case of Guarantees, we have assumed the receipt by each
person to whom or for whose benefit a Security is to be issued (collectively,
the "Beneficial Holders") of a certificate for such Security or the receipt by
the Depository Trust Company, acting as agent, on behalf of all Beneficial
Holders of the class or series of Securities of which such Security is one, of a
global security then evidencing such Securities, and the issuance and sale of
and payment
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Anadarko Petroleum Corporation
August 6, 2002
Page 4
for the Securities so acquired, in accordance with the applicable purchase,
underwriting or similar agreement approved by the board of directors of each
affected issuer and the Registration Statement (including the Prospectus and the
applicable Prospectus Supplement).
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. With respect to the Common Stock, when (a) Anadarko Petroleum has
taken all necessary action to approve the issuance of such Common Stock, the
terms of the offering thereof and related matters and (b) such Common Stock has
been issued and delivered in accordance with the terms of the applicable
definitive purchase, underwriting or similar agreement approved by the board of
directors of Anadarko Petroleum, upon payment (or delivery) of the consideration
therefor provided for therein, such Common Stock will be validly issued, fully
paid and nonassessable.
2. With respect to Warrants to be issued under a Warrant Agreement,
when (a) Anadarko Petroleum has taken all necessary action to approve the
issuance and terms of such Warrants, the terms of the offering thereof and
related matters, (b) the Warrant Agreement has been duly authorized and validly
executed and delivered by Anadarko Petroleum and the warrant agent under the
Warrant Agreement and (c) such Warrants have been duly executed, authenticated,
issued and delivered in accordance with the terms of the Warrant Agreement and
the applicable definitive purchase, underwriting or similar agreement approved
by the board of directors of Anadarko Petroleum, upon payment (or delivery) of
the consideration therefor provided for therein, such Warrants will constitute
valid and legally binding obligations of Anadarko Petroleum.
3. With respect to the Preferred Stock, assuming the (a) taking by the
board of directors of Anadarko Petroleum of all necessary corporate action to
authorize and approve the issuance and terms of a series of the Preferred Stock,
(b) due filing with the Office of the Secretary of State of Delaware of the
applicable Certificate of Designation for the particular series of Preferred
Stock to be issued and (c) due issuance and delivery of such series of the
Preferred Stock, upon payment therefor in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the board of
directors of Anadarko Petroleum, such series of the Preferred Stock will be
validly issued, fully paid and nonassessable.
4. With respect to the Depositary Shares in respect of the Preferred
Stock, assuming the (a) taking by the board of directors of Anadarko Petroleum
of all necessary corporate action to authorize and approve the issuance and
terms of the series of Preferred Stock to be issued in connection therewith,
(b) due authorization, and valid execution and delivery of the Deposit Agreement
(in the form filed as Exhibit (t) to the Registration Statement) by Anadarko
Petroleum and the depositary agent under the Deposit Agreement, (c) due filing
with the Office of the Secretary of State of Delaware of the applicable
Certificate of Designation for the particular series of Preferred Stock to be
issued, (d) terms of the Depositary Shares and of their issuance and sale have
been duly established in conformity with the terms of the Deposit Agreement, (e)
due issuance and delivery of such series of Preferred Stock, upon payment of the
consideration therefor provided for in the applicable definitive purchase,
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Anadarko Petroleum Corporation
August 6, 2002
Page 5
underwriting or similar agreement approved by the board of directors of Anadarko
Petroleum, (f) Depositary Receipts evidencing the Depositary Shares have been
duly issued against the deposit of the applicable series of Preferred Stock in
accordance with the Deposit Agreement, and (g) receipt by Anadarko Petroleum of
such lawful consideration for the Depositary Shares as the board of directors of
Anadarko Petroleum may determine, the Depositary Shares will be validly issued,
fully paid and nonassessable, and the related Depositary Receipts will entitle
the holders thereof to the rights specified therein and in the Deposit
Agreement.
5. With respect to the Purchase Contracts, assuming the (a) taking of
all necessary corporate action to authorize and approve the issuance and terms
for the issuance of Purchase Contracts, the terms of the applicable offering
thereof and related matters by the board of directors of Anadarko Petroleum, (b)
due authorization, and valid execution and delivery of the Purchase Contract
Agreement by Anadarko Petroleum and the purchase contract agent under the
Purchase Contract Agreement, and (c) due execution, issuance and delivery of the
applicable Purchase Contracts, upon payment of the consideration for such
Purchase Contracts provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the board of directors of Anadarko
Petroleum and otherwise in accordance with the provisions of the applicable
Purchase Contract Agreement, the Purchase Contracts will constitute valid and
legally binding obligations of Anadarko Petroleum.
6. With respect to the Purchase Units, assuming the (a) taking of all
necessary corporate action to authorize and approve (i) the issuance and terms
of the Purchase Units, (ii) the execution and terms of the Purchase Contracts
which are a component of the Purchase Units, the terms of the offering thereof
and related matters, (iii) the issuance and terms of the applicable series of
Debt Securities which are a component of the Purchase Units, the terms of the
offering thereof and related matters, (iv) the issuance and terms of the Trust
Preferred Securities which are a component of the applicable Purchase Units, the
terms of the offering thereof and related matters, (b) taking of all necessary
corporate or other required action to authorize and approve the issuance and
terms of debt obligations, including U.S. treasury securities ("Third Party Debt
Securities"), which are a component of the Purchase Units and related matters by
the board of directors of each third party, or a duly constituted and acting
committee of such board or duly authorized officers of each third party with the
power to authorize and approve the same, and (c) due execution, authentication,
in the case of the applicable series of Debt Securities and Third Party Debt
Securities, issuance and delivery of (i) the applicable Purchase Units, (ii)
such Purchase Contracts, (iii) such series of Debt Securities, (iv) such Trust
Preferred Securities and (v) such Third Party Debt Securities, in each case upon
payment of the consideration therefor provided for in the applicable definitive
purchase, underwriting or similar agreement approved by the board of directors
of Anadarko Petroleum and otherwise in accordance with the provisions of the
applicable Purchase Contract Agreement, in the case of the Purchase Contracts,
the applicable Indenture, in the case of a series of Debt Securities, the
applicable Declaration of Trust and Certificates of Trust and Trust Agreement,
in the case of such Trust Preferred Securities and any applicable indenture, in
the case of such Third Party Debt Securities, such Purchase Units will
constitute valid and legally binding obligations of Anadarko Petroleum.
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Anadarko Petroleum Corporation
August 6, 2002
Page 6
7. With respect to the Trust Preferred Guarantees, assuming the (a)
taking of all necessary corporate action to authorize and approve the issuance
and terms of the Trust Preferred Guarantees, the terms of the offering thereof
and related matters, (b) due authorization, and valid execution and delivery of
the Guarantee Agreement by Anadarko Petroleum and the guarantee trustee under
the Guarantee Agreement, (c)(i) declaration of trust pursuant to which the Trust
Preferred Guarantees will be issued, and (ii) Trust Preferred Guarantees with
respect to Trust Preferred Securities issued pursuant to a declaration of trust,
have been duly qualified under the Trust Indenture Act of 1939, as amended, and
(d) due execution, issuance and delivery of the Trust Preferred Guarantees upon
payment of fair consideration or reasonably equivalent value therefor as
provided for in the applicable definitive purchase, underwriting or similar
agreement approved by the board of directors of Anadarko Petroleum and otherwise
in accordance with the applicable Guarantee Agreement, such Guarantees will
constitute valid and legally binding obligations of Anadarko Petroleum.
8. With respect to any series of Anadarko Petroleum Debt Securities to
be issued under the Senior Indenture, when (a) the applicable supplement, if
any, to the Senior Indenture, has been duly authorized and validly executed and
delivered by Anadarko Petroleum and the trustee under the Senior Indenture, or
the applicable Board Resolution has been duly authorized and validly executed
and delivered by Anadarko Petroleum, or the applicable Officers' Certificate has
been validly executed and delivered by a duly authorized officer of Anadarko
Petroleum, in each case, in accordance with the terms of the Senior Indenture,
(b) the Senior Indenture, as then and theretofore supplemented, has been duly
qualified under the Trust Indenture Act of 1939, as amended, (c) Anadarko
Petroleum has taken all necessary action to approve the issuance and terms of
such series of Anadarko Petroleum Debt Securities, the terms of the offering
thereof and related matters and (d) the Anadarko Petroleum Debt Securities of
such series have been duly executed, authenticated, issued and delivered in
accordance with the terms of the Senior Indenture and the applicable definitive
purchase, underwriting or similar agreement approved by the board of directors
of Anadarko Petroleum, upon payment (or delivery) of the consideration therefor
provided for therein, the Anadarko Petroleum Debt Securities of such series will
constitute valid and legally binding obligations of Anadarko Petroleum.
9. With respect to any series of Anadarko Petroleum Debt Securities to
be issued under the Subordinated Indenture, when (a) the applicable supplement,
if any, to the Subordinated Indenture has been duly authorized and validly
executed and delivered by Anadarko Petroleum and the trustee under the
Subordinated Indenture, or the applicable Board Resolution has been duly
authorized and validly executed and delivered by Anadarko Petroleum, or the
applicable Officers' Certificate has been validly executed and delivered by a
duly authorized officer of Anadarko Petroleum, in each case, in accordance with
the terms of the Subordinated Indenture, (b) the Subordinated Indenture, as then
and theretofore supplemented, has been duly qualified under the Trust Indenture
Act of 1939, as amended, (c) Anadarko Petroleum has taken all necessary action
to approve the issuance and terms of such series of Anadarko Petroleum Debt
Securities, the terms of the offering thereof and related matters and (d) the
Anadarko Petroleum Debt Securities of such series have been duly executed,
authenticated,
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Anadarko Petroleum Corporation
August 6, 2002
Page 7
issued and delivered in accordance with the terms of the Subordinated Indenture
and the applicable definitive purchase, underwriting or similar agreement
approved by the board of directors of Anadarko Petroleum, upon payment (or
delivery) of the consideration therefor provided for therein, the Anadarko
Petroleum Debt Securities of such series will constitute valid and legally
binding obligations of Anadarko Petroleum.
10. With respect to any series of Anadarko Finance Debt Securities to
be issued under the Anadarko Finance Indenture, when (a) the applicable
supplement, if any, to the Anadarko Finance Indenture, has been duly authorized
and validly executed and delivered by Anadarko Finance, Anadarko Petroleum and
the trustee under the Anadarko Finance Indenture, or the applicable Board
Resolution has been duly authorized and validly executed and delivered by
Anadarko Finance, or the applicable Officers' Certificate has been validly
executed and delivered by a duly authorized officer of Anadarko Finance, in each
case, in accordance with the terms of the Anadarko Finance Indenture, (b) the
Anadarko Finance Indenture, as then and theretofore supplemented, has been duly
qualified under the Trust Indenture Act of 1939, as amended, (c) Anadarko
Finance has taken all necessary action to approve the issuance and terms of such
series of Anadarko Finance Debt Securities, the terms of the offering thereof
and related matters and (d) the Anadarko Finance Debt Securities of such series
have been duly executed, authenticated, issued and delivered in accordance with
the terms of the Anadarko Finance Indenture and the applicable definitive
purchase, underwriting or similar agreement approved by the board of directors
of Anadarko Finance, upon payment (or delivery) of the consideration therefor
provided for therein, the Anadarko Finance Debt Securities of such series will
constitute valid and legally binding obligations of Anadarko Finance.
11. With respect to the Anadarko Finance Guarantees, assuming (a) the
taking of all necessary corporate action and unlimited liability company action
to authorize and approve the issuance and terms of the Anadarko Finance
Guarantees and the Anadarko Finance Debt Securities to which they pertain, the
terms of the offering thereof and related matters, (b) the Anadarko Finance
Indenture, as then and theretofore supplemented, pursuant to which the Anadarko
Finance Guarantees will be issued, has been duly qualified under the Trust
Indenture Act of 1939, as amended, and (c) such Anadarko Finance Debt Securities
have been duly executed, authenticated, issued and delivered in accordance with
the terms of the Anadarko Finance Indenture and the applicable definitive
purchase, underwriting or similar agreement approved by the board of directors
of Anadarko Finance and the board of directors of Anadarko Petroleum, upon
payment (or delivery) of the consideration for such Anadarko Finance Debt
Securities provided for therein, such Anadarko Finance Guarantees will
constitute valid and legally binding obligations of Anadarko Petroleum.
Our opinions in paragraphs 2, 4, 5, 6, 7, 8, 9, 10 and 11 above are
subject to applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfer or conveyance), reorganization, moratorium
and other similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (b) concepts of
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Anadarko Petroleum Corporation
August 6, 2002
Page 8
materiality, reasonableness, good faith and fair dealing, and we express no
opinion herein with respect to provisions relating to severability or
separability. The opinion expressed above in paragraph 10 with respect to the
Anadarko Finance Debt Securities is also subject to possible judicial action
giving effect to governmental actions or foreign laws affecting creditors'
rights.
With respect to our opinions expressed above as they relate to Debt
Securities or other obligations of Anadarko Petroleum or Anadarko Finance, as
the case may be, denominated in a currency other than U.S. dollars, we note that
(i) a New York statute provides that a judgment rendered by a court of the State
of New York in respect of an obligation denominated in any such other currency
would be rendered in such other currency and would be converted into Dollars at
the rate of exchange prevailing on the date of entry of the judgment, and (ii) a
judgment rendered by a Federal court sitting in the State of New York in respect
of an obligation denominated in any such other currency may be expressed in
Dollars, but we express no opinion as to the rate of exchange such Federal court
would apply.
We express no opinion other than as to the federal laws of the United
States of America, the laws of the State of New York and the DGCL. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to this firm under the heading "Legal Matters" in
the Prospectus. In giving this consent we do not admit that we are "experts"
under the Securities Act of 1933, as amended, or the rules and regulations of
the SEC issued thereunder, with respect to any part of the Registration
Statement, including this exhibit. This opinion is expressed as of the date
hereof, and we disclaim any undertaking to advise you of any subsequent changes
of the facts stated or assumed herein or any subsequent changes in applicable
law, and we have assumed that at no future time would any such subsequent change
of fact or law affect adversely our ability to render at such time an opinion
(a) containing the same legal conclusions set forth herein and (b) subject only
to such (or fewer) assumptions, limitations and qualifications as are contained
herein.
Very truly yours,
/s/ ANDREWS & KURTH MAYOR, DAY &
CALDWELL L.L.P.