EXHIBIT 10.1
THE WILLIAMS COMPANIES, INC.
$650,000,000 8.125% Notes due March 15, 2012
850,000,000 8.75% Notes due March 15, 2032
PURCHASE AGREEMENT
March 14, 2002
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
As representatives (the "REPRESENTATIVES")
of the several Initial Purchasers named herein
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, NY 10019
Ladies and Gentlemen:
The Williams Companies, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several initial purchasers (the "INITIAL
PURCHASERS" or "YOU") listed in Schedule I hereto (i) $650,000,000 aggregate
principal amount of its 8.125% Notes due March 15, 2012 (the "8.125% NOTES") and
(ii) $850,000,000 aggregate principal amount of its 8.75% Notes due March 15,
2032 (the "8.75% NOTES" and, together with the 8.125% Notes, the "NOTES") to be
issued pursuant to the provisions of a Seventh Supplemental Indenture dated as
of March 19, 2002 to the Indenture dated as of November 10, 1997, as amended
(together, the "INDENTURE") between the Company and Bank One Trust Company,
N.A., as Trustee (the "TRUSTEE").
The Company hereby confirms its agreement with the Initial Purchasers
to issue and sell all of the Notes to the Initial Purchasers, on the terms and
conditions set forth herein.
The Notes will be offered and sold to the Initial Purchasers, without
registration under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), in reliance upon an exemption
from the registration requirements of the Securities Act. The Company has
prepared and delivered to the Initial Purchasers a preliminary confidential
offering memorandum dated March 14, 2002 (together with all documents
incorporated by reference therein, the "PRELIMINARY OFFERING MEMORANDUM") and
has prepared and will deliver to the Initial Purchasers on the date hereof or as
soon as practicable thereafter, copies of a final confidential offering
memorandum dated March 14, 2002 (together with all amendments and supplements
thereto, and together with all documents incorporated by reference therein, the
"FINAL OFFERING MEMORANDUM"), relating to the Notes. The Preliminary Offering
Memorandum and the Final Offering Memorandum are sometimes collectively referred
to herein as the "OFFERING MEMORANDUM." All references in this Agreement to the
Offering Memorandum include the documents incorporated by reference therein. The
Company hereby confirms that it has authorized the use of the Offering
Memorandum in connection with the offer and sale of the Notes.
The Company understands that the Initial Purchasers propose to make
offerings ("EXEMPT RESALES") of the Notes only on the terms and in the manner
set forth in the Offering Memorandum and herein, as soon as the Initial
Purchasers deem advisable after this Agreement has been executed and delivered,
only to (i) persons in the United States whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers" ("QIBS") as defined in Rule 144A
under the Securities Act, as such rule may be amended from time to time ("RULE
144A"), in transactions meeting the requirements of Rule 144A and (ii) non-U.S.
persons to whom offers and sales of the Notes may be made in reliance upon
Regulation S under the Securities Act ("REGULATION S"), in offshore transactions
meeting the requirements of Regulation S.
The holders of the Notes will be entitled to the benefits of a
Registration Rights Agreement, in substantially the form attached as Exhibit A
hereto with such changes as shall be agreed to by the parties hereto (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company will file a
registration statement (the "REGISTRATION STATEMENT") with the Securities and
Exchange Commission (the "COMMISSION") registering the Notes or the Exchange
Notes referred to in the Registration Rights Agreement under the Securities Act.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with the Initial Purchasers that:
(a) each document filed or to be filed pursuant to the
Securities Exchange Act of 1934 (the "EXCHANGE ACT") and incorporated
by reference in the Offering Memorandum complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations thereunder;
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(b) the Offering Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) as
of its date did not, and as of the Closing Date (as defined in Section
4) 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 the light of circumstances under which
they were made, not misleading;
(c) Ernst & Young LLP, who have reported upon the audited
financial statements and schedules included or incorporated by
reference in the Offering Memorandum, are independent auditors within
the meaning of the rules and regulations promulgated under the
Securities Act;
(d) this Agreement has been duly authorized, executed and
delivered by the Company;
(e) the Company and each of its significant subsidiaries (as
defined in Rule 1-02 of Regulation S-X under the Securities Act) (each,
a "Significant Subsidiary" and collectively, "Significant
Subsidiaries") have been duly incorporated (in the case of each
Significant Subsidiary which is a corporation) or otherwise validly
formed and are validly existing in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to
do business and are in good standing in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where failure
to have such qualifications would not, singly or in the aggregate, have
a material adverse effect on the consolidated financial position,
results of operation, business or prospects of the Company and its
subsidiaries, taken as a whole, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged;
(f) the Company has an authorized capitalization as set forth
in the Offering Memorandum and all of the issued shares of capital
stock of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Offering Memorandum; and all of the issued shares of
capital stock of each Significant Subsidiary (in the case of each
Significant Subsidiary which is a corporation) or membership interests
(in the case of each Significant Subsidiary which is a limited
liability corporation) have been duly authorized and validly issued and
are fully paid and non-assessable and (except for directors' qualifying
shares and as disclosed in the Offering Memorandum) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
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(g) the Indenture and each supplement or amendment thereto to
the date hereof and any supplement thereto, officer's certificate or
board resolution setting forth the terms of the Notes, have been duly
authorized by the Company. The Indenture constitutes a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law); and the Indenture conforms in all material
respects to the description thereof in the Offering Memorandum;
(h) the Notes have been duly authorized by the Company. When
duly executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold to and paid for by the Initial
Purchasers as provided herein, the Notes will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and will be enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law); and the Notes conform in all material respects to
the description thereof in the Offering Memorandum;
(i) the Registration Rights Agreement has been duly authorized
by the Company. When duly executed and delivered by the Company, the
Registration Rights Agreement will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally,
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) and except as rights to indemnification and
contribution thereunder may be limited by applicable law;
(j) since the date of the Offering Memorandum (or any
amendment or supplement thereto), except as otherwise stated therein or
contemplated thereby, there has not been (A) any material adverse
change or any development involving a prospective material adverse
change in the condition (financial or otherwise), earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
whether
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or not arising in the ordinary course of business and (B) any
transaction entered into by the Company or any of its subsidiaries,
other than in the ordinary course of business, that is material to the
Company and its subsidiaries, taken as a whole;
(k) the execution and delivery by the Company of this
Agreement, the issuance and delivery of the Notes, the consummation by
the Company of the transactions contemplated herein and compliance by
the Company with the terms of this Agreement, the Registration Rights
Agreement, the Notes and the Indenture have been duly authorized by all
necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the
Company or any of its subsidiaries, and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which
it is bound or to which any of its properties is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that could not reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), earnings, or business of the
Company and its subsidiaries, taken as a whole) or (B) assuming the
accuracy of the representations, warranties and agreements of the
Initial Purchasers in Section 2 hereof and Section 7 hereof, any
existing applicable law, rule, regulation, judgment, order or decree or
determination of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties;
(l) except as disclosed in the Offering Memorandum (or any
amendment or supplement thereto), there is no action, suit or
proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its
subsidiaries that is required to be disclosed in the Offering
Memorandum or that could reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
earnings or business of the Company and its subsidiaries, taken as a
whole, or that could reasonably be expected to materially and adversely
affect the properties or assets of the Company and its subsidiaries,
taken as a whole, or that could reasonably be expected to adversely
affect the consummation of the transactions contemplated in this
Agreement or the Registration Rights Agreement;
(m) the Company and its subsidiaries each owns or possesses all
governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations (collectively, "GOVERNMENTAL
LICENSES") necessary to own or lease, as
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the case may be, and to operate its properties and to carry on its
business as presently conducted, except where the failure to possess
such Governmental Licenses could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings or business of the Company and its subsidiaries, taken as a
whole, and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to revocation or modification of any
such Governmental Licenses;
(n) there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its Significant Subsidiaries (or, to the knowledge of
the Company, any of their predecessors in interest) at, upon or from
any of the property now or previously owned or leased by the Company or
its Significant Subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
consolidated financial position, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its Significant Subsidiaries or with
respect to which the Company or any of its Significant Subsidiaries
have knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not
be reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the consolidated
financial position, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole; and the terms
"hazardous wastes", "toxic wastes", "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(o) the Company is not, and after the consummation of the
transactions contemplated herein will not be, an "investment company"
under the Investment Company Act of 1940, as amended;
(p) the consolidated balance sheets of the Company as of
December 31, 2001 and the related consolidated statements of
operations, cash flows and capitalization for the fiscal year then
ended, reported on by Ernst & Young LLP and
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incorporated by reference in the Offering Memorandum, fairly present,
in all material respects, the financial position of the Company and its
consolidated subsidiaries as of such date and its consolidated results
of operations and cash flows for such fiscal year in conformity with
generally accepted accounting principles;
(q) assuming the accuracy of the representations, warranties
and agreements of the Initial Purchasers in Section 2 hereof and
Section 7 hereof, no authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(except such as have been obtained, or as may be required under the
securities or blue sky laws of the various states in which the Notes
will be offered or sold), is required for the valid authorization,
issuance, sale and delivery of the Notes or for the execution, delivery
or performance of this Agreement, the Registration Rights Agreement,
the Indenture and the Notes by the Company;
(r) assuming the accuracy of the representations, warranties
and agreements of the Initial Purchasers in Section 2 hereof and
Section 7 hereof, compliance by the Initial Purchasers with the
offering and transfer procedures and restrictions described in the
Offering Memorandum and the accuracy of the representations and
warranties deemed to be made in the Offering Memorandum by purchasers
to whom the Initial Purchasers initially resell the Notes, it is not
necessary in connection with the offer, sale and delivery of the Notes
to the Initial Purchasers or in connection with the initial resale of
the Notes by the Initial Purchasers in the manner contemplated by this
Agreement and the Offering Memorandum to register the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended;
(s) the Company, its affiliates and any person acting on its
or their behalf have not, directly or indirectly:
(i) engaged in any directed selling efforts (within
the meaning of Regulation S under the Securities Act) with
respect to the Notes;
(ii) offered or sold the Notes in the United States by
any form of general solicitation or general advertising
(within the meaning of 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; or
(iii) sold, solicited any offers to buy or offered to
sell or otherwise negotiated in respect of any security in a
manner that would require registration of the Notes under the
Securities Act in accordance with the theory of "integration"
referred to in Regulation D under the Securities Act;
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(t) the Notes satisfy the requirements of Rule 144A(d)(3)
under the Securities Act; and
(u) the Offering Memorandum contains the information regarding
the Company specified in, and which satisfies the requirements of, Rule
144A(d)(4) under the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE INITIAL PURCHASERS. Each
Initial Purchaser hereby severally, and not jointly, represents and warrants to,
and agrees with, the Company that: such Initial Purchaser (i) is an
institutional "accredited investor" (as defined in Regulation D) with such
knowledge and experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the Notes; (ii) is
not acquiring the Notes with a view to any distribution thereof that would
violate the Securities Act or the securities or blue sky laws of any state or
country, (iii) has received all information it considers necessary to evaluate
the merits and risks of an investment in the Notes, (iv) has not and will not
solicit offers for, or offer to sell, the Notes by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act, or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act; and (vi) will offer or sell the Notes
only: (x) in offshore transactions in accordance with Rule 903 of Regulation S;
provided that commencing on the date hereof and continuing through a 40-day
restricted period commencing on the Closing Date (as defined below): (1) no such
offer or sale will be made to a U.S. person or for the account or benefit of a
U.S. person (other than such Initial Purchaser); and (2) such Initial Purchaser,
if selling Securities to a dealer or a person receiving a selling concession,
fee or other remuneration in respect of the Securities, will send a confirmation
or other notice to the purchaser stating that the purchaser is subject to the
same restrictions on offers and sales as are set forth in this Section 2; the
terms used in this clause (x) are being used as used in Regulation S; or (y) to
persons whom it reasonably believes to be QIBs within the meaning of Rule 144A
under the Securities Act in transactions meeting the requirements of Rule 144A.
Each Initial Purchaser hereby severally, and not jointly, represents
and warrants to and agrees with, the Company that (i) it has not offered or sold
and, before the expiration of the period of six months from the closing date for
the Notes, will not offer or sell any Notes to persons in the United Kingdom,
except to those 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, (ii) it
has only communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
Act 2000 ("the FSMA")) received by it in connection with the issue or sale of
any Notes in circumstances in which Section 12(1) of the FSMA does not apply to
the Company
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and (c) it has complied and will comply with all applicable provisions of the
FSMA, with respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom.
Each Initial Purchaser hereby severally, and not jointly, represents
and warrants to and agrees with, the Company that it has not offered or sold,
and will not offer or sell, directly or indirectly, any of the Notes in or to
residents of Japan or to any persons for reoffering or resale, directly or
indirectly in Japan or to any resident of Japan, except pursuant to an exemption
from the registration requirements of the Securities and Exchange Law available
thereunder and in compliance with the other relevant laws and regulations of
Japan.
3. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
to the Initial Purchasers, and each Initial Purchaser, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the aggregate principal amount of each series of Notes set forth
opposite such Initial Purchaser's name in Schedule I hereto at 98.452% of their
aggregate principal amount, in the case of the 8.125% Notes, and 97.751% of
their aggregate principal amount, in the case of 8.75% Notes, plus, in each
case, accrued interest, if any, from March 19, 2002 to the date of payment and
delivery.
4. PAYMENT AND DELIVERY. Payment for the Notes shall be made by wire or
other immediately available funds to the order of the Company at 10:00 A.M., New
York time, on March 19, 2002, or at such other time on the same or such other
date, as shall be agreed by the parties and designated in writing by the
Representatives. The time and date of such payment are hereinafter referred to
as the "CLOSING DATE."
Payment for the Notes shall be made against delivery to you of the one
or more global notes representing the Notes (each, a "GLOBAL NOTE") registered
in the name of Cede & Co. with any transfer taxes payable in connection with the
transfer of the Notes to the Initial Purchasers duly paid. Such Global Notes
shall be made available to the Representatives for inspection and packaging on
the business day in New York City preceding the Closing Date.
5. CONDITIONS TO THE INITIAL PURCHASERS' OBLIGATIONS. The obligations
of the Initial Purchasers are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been received of (A) any intended or
potential downgrading or (B) any review or possible change
that does not indicate the direction of a possible
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change, in the rating accorded any of the Company's securities
by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Act; and
(ii) there shall not have occurred any material
adverse change, or any development which could reasonably be
expected to result in a prospective material adverse change,
in the financial condition, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Offering Memorandum.
(b) The Representatives shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clauses (a)(i) and
(ii) above and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Representatives shall have received on the Closing
Date an opinion of William G. von Glahn, Esq., Senior Vice President
and General Counsel of The Williams Companies, Inc., dated the Closing
Date, to the effect that:
(i) the Company and each of its Significant
Subsidiaries have been duly incorporated (in the case of each
Significant Subsidiary that is a corporation) or otherwise
validly formed and are validly existing in good standing under
the laws of their respective jurisdictions of organization,
have the requisite power and authority to own their property
and to conduct their business as described in the Offering
Memorandum and are duly qualified to do business and are in
good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification, except to
the extent such failure to be qualified or in good standing
would not have a material adverse effect on the consolidated
financial position, results of operations, business or
prospects of the Company and its subsidiaries, taken as a
whole, and have all power and authority necessary to own or
hold their respective properties and conduct the businesses in
which they are engaged as described in or contemplated by the
Offering Memorandum; and all of the issued shares of capital
stock of each Significant Subsidiary (in the case of each
Significant Subsidiary that is a
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corporation) or membership interests (in the case of each
Significant Subsidiary that is a limited liability
corporation) have been duly and validly authorized and issued
and are fully paid, non-assessable and (except for directors'
qualifying shares and as disclosed in the Offering Memorandum)
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(ii) the Company and its subsidiaries hold all
franchises, certificates of public convenience and necessity,
consents, authorizations, approvals, orders, permits, licenses
and easements necessary to own, operate and maintain its
properties as described in the Offering Memorandum, subject
only to such defects, irregularities, restrictions, conditions
and other matters as are described in the Offering Memorandum
or which do not materially affect the right of the Company or
its subsidiaries to own, operate and maintain its properties
and to conduct its business as described therein, and has made
all declarations and filings with, all federal, state, local
and other governmental authorities, and all courts or other
tribunals, necessary to conduct its business in the manner
described in the Offering Memorandum, except to the extent
that the lack of such consents, authorizations, approvals,
orders, certificates or permits would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) neither the Company nor any of its Significant
Subsidiaries (i) is in violation of its charter or by-laws,
(ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets
is subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or
has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the
conduct of its business except, in case of (ii) and (iii), for
such defaults, violations, or failures to obtain such
authorizations or permits that have not had or are not
reasonably expected to have, a material adverse effect on the
consolidated financial condition, results of operations,
business or prospects of the Company and its subsidiaries,
taken as a whole;
(iv) the Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and authentication
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by the Trustee, is a valid and binding agreement of the
Company enforceable in accordance with its terms subject, as
to enforcement, to bankruptcy, insolvency, reorganization, and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(v) the Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture, and delivered to and paid for by the Initial
Purchasers, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles,
and will be entitled to the benefits of the Indenture;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and except
as rights to indemnification and contribution thereunder may
be limited by applicable law;
(viii) assuming compliance by the Initial Purchasers
with the offering and transfer procedures and restrictions
described in the Offering Memorandum, the accuracy of the
representations and warranties deemed to be made in the
Offering Memorandum by purchasers to whom the Initial
Purchasers initially resell the Notes and that purchasers to
whom the Initial Purchasers initially resell the Notes receive
a copy of the Offering Memorandum prior to such sale, no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency having jurisdiction over
the Company is required for the performance by the Company of
its obligations under this Agreement, the Registration Rights
Agreement, the Notes and the Indenture, except such as have
been obtained or as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Notes;
(ix) The execution, delivery and performance by the
Company of its obligations under this Purchase Agreement, the
Registration Rights Agreement, the Notes and the Indenture
will not contravene any provision of applicable law
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or the Certificate of Incorporation or the By-laws of the
Company or any material agreement or other material instrument
binding upon the Company;
(x) the statements in the Offering Memorandum under
the caption "Description of the Notes," insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly summarize
in all material respects the matters referred to therein;
(xi) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to
which the Company is a party or to which any of the properties
of the Company is subject that are required to be described in
the documents incorporated by reference in the Offering
Memorandum and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Offering Memorandum that are not described
as required;
(xii) the Company is not, and following the
consummation of the transactions contemplated herein will not
be, an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended;
(xiii) such counsel has no reason to believe that
(except for financial statements and schedules and related
notes thereto, and the other financial, statistical and
accounting data as to which such counsel need not express any
belief) the Offering Memorandum as of its date or as of the
Closing Date contained or contains any untrue statement of a
material fact or omitted or omits 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; and
(xiv) assuming the accuracy of the representations of
the Initial Purchasers contained in Section 2 hereof and
compliance by the Initial Purchasers with the covenants set
forth in Section 7 hereof, compliance by the Initial
Purchasers with the offering and transfer procedures and
restrictions described in the Offering Memorandum and the
accuracy of the representations and warranties deemed to be
made in the Offering Memorandum by purchasers to whom the
Initial Purchasers initially resell the Notes, it is not
necessary in connection with the offer, sale and delivery of
the Notes in the manner contemplated in this Agreement to
register the Notes under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended.
13
The opinion of William G. von Glahn, Esq. described in
paragraph (c) above shall be rendered to the Initial Purchasers at the
request of the Company and shall so state therein.
(d) The Representatives shall have received on the Closing
Date an opinion of Davis Polk & Wardwell, counsel for the Initial
Purchasers, dated the Closing Date, covering the matters referred to in
subparagraphs (iv), (v), (vi), (vii), (xiii) and (xiv) of paragraph (c)
above.
With respect to subparagraph (xiii) of paragraph (c)
above, Davis Polk & Wardwell may state that their belief is based upon
their participation in the preparation of the Offering Memorandum
(excluding any documents incorporated by reference therein) and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified. Davis Polk & Wardwell may also state that they
have relied solely on the opinion of William G. von Glahn, Esq., as to
matters relating to the regulation of the Company by the Federal Energy
Regulatory Commission.
The opinion of William G. von Glahn, Esq. described in
paragraph (c) above shall be rendered to the Initial Purchasers at the
request of the Company and shall so state therein.
(e) The Representatives shall have received on the Closing
Date a letter, in form and substance satisfactory to the
Representatives, from Ernst & Young LLP, independent auditors,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Offering Memorandum.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Initial Purchasers herein contained, the Company, its
affiliates and any person acting on its or their behalf, covenants with the
Initial Purchasers as follows:
(a) The Company, its affiliates and any person acting on its
or their behalf will not, directly or indirectly:
(i) offer or sell the Notes in the United States by
any form of general solicitation or general advertising
(within the meaning of 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;
14
(ii) sell, solicit any offers to buy or offer to sell
or otherwise negotiate in respect of any security in a manner
that would require registration of the Notes under the
Securities Act in accordance with the theory of "integration"
referred to in Regulation D under the Securities Act; or
(iii) engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Notes.
(b) While any Note remains outstanding, during any period in
which the Company is not subject to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, and its securities are not
exempt from Section 12(g) thereof pursuant to Rule 12g3-2(b)
thereunder, the Company will upon request make available to the Initial
Purchaser, to any holder of Notes, and to any prospective purchaser
designated by any holder of Notes, the information regarding the
Company specified in, and satisfying the requirements of, Rule
144A(d)(4) under the Securities Act.
(c) To prepare the Offering Memorandum in a form approved by
the Representatives, and before amending or supplementing the Offering
Memorandum, to furnish to the Representatives a copy of each such
proposed amendment or supplement and not to prepare any such proposed
amendment or supplement to which the Representatives reasonably object.
(d) To furnish the Initial Purchasers with copies of the
Offering Memorandum and each amendment or supplement thereto, in such
quantities as you may from time to time reasonably request, and if, at
any time prior to the consummation of any Exempt Resale, any event
shall have occurred as a result of which the Offering Memorandum 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 when such Offering Memorandum is delivered, not
misleading, or, if for any other reason it shall be necessary or
desirable, during such same period to amend or supplement the Offering
Memorandum, to notify you and upon your request to prepare and furnish
without charge to the Initial Purchasers as many copies as you may from
time to time reasonably request of the amended Offering Memorandum or
supplement to the Offering Memorandum which will correct such statement
or omission or effect such compliance.
(e) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
15
substantially similar to the Notes (other than the Notes), without the
prior written consent of the Representatives.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such states in the United States as
the Representatives designate and will continue such qualifications in
effect so long as required for the resale of the Notes by the Initial
Purchasers; provided that the Company will not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any such state.
(g) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, to pay all costs, expenses, fees and taxes incident to and
in connection with: (i) the preparation, printing, filing and
distribution of the Offering Memorandum and all amendments and
supplements thereto (but not, however, legal fees and expenses of your
counsel incurred in connection therewith), (ii) the preparation,
printing (including, without limitation, word processing and
duplication costs) and delivery of this Agreement, the Registration
Rights Agreement, the Indenture, any Blue Sky Memoranda and any other
agreements, memoranda, correspondence and other documents printed and
delivered in connection herewith and with the Exempt Resales (but not,
however, legal fees and expenses of your counsel incurred in connection
with the foregoing), (iii) the issuance and delivery by the Company of
the Notes, (iv) the qualification of the Notes for offer and sales
under the securities or Blue Sky laws of the several states (including,
without limitation, the reasonable fees and disbursements of your
counsel relating to such registration or qualification), (v) furnishing
such copies of the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested by the
Representatives for use in connection with the initial Exempt Resales,
(vi) the preparation of certificates for the Notes including, without
limitation, printing and engraving, (vii) the fees, disbursements and
expenses of the Company's counsel and accountants, (viii) all fees and
expenses (including fees and expenses of counsel) of the Company in
connection with the approval of the Notes by DTC for "book-entry"
transfer, (ix) the fees, disbursements and expenses of the Trustee and
the Trustee's counsel and (x) the performance by the Company of its
other obligations under this Agreement to the extent not provided for
above.
(h) To take all reasonable action necessary to enable Standard
& Poor's Rating Service, a division of McGraw Hill, Inc. ("S&P"), and
Moody's Investor Service, Inc. ("Moody's") to provide their respective
ratings of the Notes.
16
(i) To cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Notes to be eligible for
clearance and settlement through the facilities of The Depository Trust
Company.
7. COVENANTS OF THE INITIAL PURCHASERS.
(a) Each of the Initial Purchasers severally acknowledges that
the Notes have not been and will not be registered under the Securities
Act and agrees that it, its affiliates and any person acting on its or
their behalf:
(i) will not offer or sell the Notes in the United
States by any form of general solicitation or general
advertising (within the meaning of 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;
(ii) will not engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Notes
and will comply with the offering restrictions requirements of
Regulation S; and
(iii) will offer or sell the Notes only (1) in offshore
transactions in accordance with Rule 903 of Regulation S in
the manner described in Section 2 hereof or (2) to persons
whom it reasonably believes to be QIBs within the meaning of
Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A.
8. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial
Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by such Initial Purchaser or any such
controlling person 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 Memorandum or
any amendment thereof (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
17
such Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through the Representatives expressly for use
therein; provided however that the foregoing indemnity agreement with
respect to the Preliminary Offering Memorandum shall not inure to the
benefit of any Initial Purchaser, or any person controlling such
Initial Purchaser, if the person asserting any such losses, claims,
damages or liabilities purchased Notes, and a copy of the Final
Offering Memorandum (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Initial Purchaser to such person,
at or prior to the written confirmation of the sale of the Notes to
such person, and if the Final Offering Memorandum (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers, its employees, its agents and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to the Initial Purchasers, but
only with reference to information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through
the Representatives expressly for use in the Offering Memorandum or any
amendments or supplements thereto.
(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 either paragraph (a) or (b)
of this Section 8, 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 impeded 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 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. The indemnifying party shall not be
18
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.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 8 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 on the one hand and the
Initial Purchasers on the other hand from the offering and sale of the
Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and of the
Initial Purchasers 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 on the one hand and the
Initial Purchasers on the other hand in connection with the offering of
the Notes shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Notes (before deducting
expenses) received by the Company and the total underwriting discounts
and commissions received by the Initial Purchasers, in each case as set
forth in the Offering Memorandum, bears to the aggregate initial
offering price of the Notes. The relative fault of the Company on the
one hand and the Initial Purchasers 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 or by the Initial
19
Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Initial Purchasers agree that it would
not be just or equitable if contribution pursuant to this Section 8
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 paragraph (d) of this Section 8. 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 or
appearing as a third party witness in any such action or claim.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by it exceeds the
amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and 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 8 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 8 and the representations, warranties and other statements
of the Company 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 any Initial
Purchaser or any person controlling an Initial Purchaser or by or on
behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Notes.
9. TERMINATION. This Agreement shall be subject to termination by
notice given by the Representatives to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date any of the events
described in Section 5(a) shall have occurred or (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade (or settlement in
the trading of securities thereon shall have been materially disrupted), (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or
20
escalation of hostilities (including, without limitation an act of terrorism) or
any change in financial markets or any calamity or crisis that, in the
Representatives' judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the Representatives' judgment,
impracticable to market the Notes on the terms and in the manner contemplated in
the Offering Memorandum. Notice of such cancellation shall be given to the
Company by telecopy or telephone but shall be subsequently confirmed by letter.
10. DEFAULTING INITIAL PURCHASERS.
If any Initial Purchaser or Initial Purchasers shall default in its or
their obligation to take up and pay for the Notes to be purchased by it or them
hereunder, the non-defaulting Initial Purchasers shall take up and pay for (in
addition to the principal amount of Notes they are obligated to purchase
hereunder) the principal amount of Notes agreed to be purchased by all such
defaulting Initial Purchasers as hereinafter set forth; provided, however, that
in the event that the principal amount of Notes which all Initial Purchasers so
defaulting shall have agreed but failed to take up and pay for shall exceed 10%
of the total principal amount of Notes, the Representatives may in their
discretion arrange for themselves or another party or parties to purchase such
Notes on the terms contained herein. If within thirty-six hours after such
default by any Initial Purchaser, the Representatives do not arrange for the
purchase of such Notes, then the Company will be entitled to a further period of
thirty-six hours within which to procure another party or parties satisfactory
to the Representatives to purchase such Notes on such terms. In the event that,
within the prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Notes, or the Company notifies the
Representatives that it has so arranged for the purchase of such Notes, the
Representatives or the Company shall have the right to postpone the Closing Date
for such Notes for a period of not more than seven days in order to effect
whatever changes may thereby be made necessary in the Final Offering Memorandum,
or in any other documents or arrangements. If non-defaulting Initial Purchasers
take up and pay for all the Notes agreed to be purchased by all such defaulting
Initial Purchasers, such Notes shall be taken up and paid for by such
non-defaulting Initial Purchaser or Initial Purchasers in such amount or amounts
as the Representatives may designate with the consent of each Initial Purchaser
so designated or, in the event no such designation is made, such Notes shall be
taken up and paid for by all non-defaulting Initial Purchasers pro rata in
proportion to the aggregate principal amount of Notes set opposite the names of
such non-defaulting Initial Purchasers on Schedule I hereto. If after giving
effort to any arrangements for the purchase of the Notes of any defaulting
Initial Purchaser as provided in this Section 10, any Notes remain unpurchased,
then this Agreement will terminate without liability to any non-defaulting
Initial Purchaser or the Company.
21
11. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES.
If this Agreement shall be terminated by the Representatives because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Initial Purchasers for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Initial Purchasers in connection with this Agreement and the offering
contemplated hereunder.
12. NOTICES. Except as otherwise provided notice given pursuant to any
of the provisions of this Agreement shall be in writing and shall be delivered
(a) if to the Company, at One Williams Center, Tulsa, Oklahoma 74172, Attention:
Treasurer, or (b) if to the Initial Purchasers, at the offices of Lehman
Brothers Inc., 745 Seventh Avenue, New York, NY 10019, Attention : Debt Capital
Markets, Power Group (with a copy to the General Counsel), or in any case to
such other address as the person to be notified may have requested in writing.
13. SUCCESSORS. The Agreement is made solely for the benefit of the
Initial Purchasers, the Company, their directors and officers and other
controlling persons referred to in Section 8 hereof, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser from any Initial Purchaser of
any of the Notes in his status as such purchaser.
14. PARTIAL UNENFORCEABILITY. If any section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other
section, paragraph or provision hereof.
15. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
16. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York
17. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
22
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Initial Purchasers.
Very truly yours,
THE WILLIAMS COMPANIES, INC.
By: /s/ JAMES G. IVEY
-------------------------------------
Name: James G. Ivey
Title: Treasurer
Accepted as of the date hereof:
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
By: Lehman Brothers Inc.
By: /s/ MARTIN GOLDBERG
-----------------------------------
Name: Martin Goldberg
Title:
On behalf of itself and the other several Initial Purchasers listed on Schedule
I hereto.
23
Schedule I
<Table>
<Caption>
Initial Purchaser Principal Amount of 8.125% Notes Principal Amount of 8.75% Notes
----------------- -------------------------------- -------------------------------
Lehman Brothers Inc. ................................. $195,000,325 $255,000,500
J.P. Morgan Securities Inc. .......................... 195,000,325 255,000,500
Banc of America Securities LLC ....................... 45,500,000 59,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... 45,500,000 59,500,000
Salomon Smith Barney Inc. ............................ 45,500,000 59,500,000
ABN AMRO Incorporated ................................ 9,499,950 12,423,000
Barclays Capital Inc. ................................ 9,499,950 12,423,000
BMO Nesbitt Burns Corp. .............................. 9,499,950 12,423,000
BNP Paribas Securitites Corp. ........................ 9,499,950 12,423,000
BNY Capital Markets .................................. 9,499,950 12,423,000
CIBC World Markets Corp. ............................. 9,499,950 12,423,000
Fleet Securities, Inc. ............................... 9,499,950 12,423,000
Mizuho International plc ............................. 9,499,950 12,423,000
RBC Dominion Securities Corporation .................. 9,499,950 12,423,000
The Royal Bank of Scotland plc ....................... 9,499,950 12,423,000
Scotia Capital (USA) Inc. ............................ 9,499,950 12,423,000
TD Securities (USA) Inc. ............................. 9,499,950 12,423,000
UBS Warburg LLC ...................................... 9,499,950 12,423,000
------------ ------------
Total .............................. $650,000,000 $850,000,000
============ ============
</Table>
24
CROSS-REFERENCE TARGET LIST
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT
APPEAR IN THE TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only, is not a part
of this document and may be discarded.)
<Table>
<Caption>
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
--------------------------- --------------------------- --------------------------- ---------------------------
?...........payment and delivery
?......amending or supplementing
?..preliminary offering circular
5(a)...............cndtns.sbsqnt
8.....indemnify and contribution
8(a)..........indemnify and hold
9....................termination
11...............reimburs.ip.exp
15..................counterparts
</Table>