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EXECUTION COPY
PIONEER NATURAL RESOURCES COMPANY
UNDERWRITING AGREEMENT
New York, New York
January 8, 1998
To the Representatives named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Dear Sirs:
Pioneer Natural Resources Company, a Delaware corporation (the
"Company"), proposes to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, $350 million of its 6.50% Senior Notes Due 2008 (the "2008
Notes") and $250 million of its 7.20% Senior Notes Due 2028 (the "2028 Notes",
and, together with the 2008 Notes, the "Notes") each of which is
unconditionally guaranteed on an unsecured basis (the "Guarantees", and,
together with the Notes, the "Securities") by Pioneer Natural Resources USA,
Inc., a Delaware corporation (the "Guarantor"). The Securities will be issued
under an indenture (as amended, the "Indenture") to be dated as of January 13,
1998, between the Company and The Bank of New York, as trustee (the "Trustee"),
as supplemented with respect to the Securities by the First Supplemental
Indenture dated as of January 13, 1998, among the Company, the Guarantor and
the Trustee. To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires.
1. Representations and Warranties. Each of the Company and the
Guarantor, jointly and severally, represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has prepared and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 333-42315), including a
related basic prospectus and a preliminary prospectus supplement, for
the registration under the Act of the offering and sale of the
Securities. The Company has filed one amendment thereto, including a
Preliminary Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as so amended, has
become effective. The offering of the Securities is a Delayed Offering
and, although the Basic Prospectus may not include all the information
with respect to the Securities and the offering thereof required by
the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included therein as
of the Effective Date and the Preliminary Final Prospectus includes
all information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in such registration statement
and the Final Prospectus as of the Effective Date. The Company will
next file with the Commission pursuant to Rules 415 and 424(b) a final
supplement to the form of prospectus included in
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such registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement shall
include all Rule 430A Information, together with all other such
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein. If the Registration Statement contains the undertaking
specified in Regulation S-K Item 512(a), the Registration Statement,
at the Execution Time, meets the requirements set forth in Rule
415(a)(i)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act
of 1939 (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for use in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. A "Delayed Offering" shall mean an
offering of securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement, with
the result that only information required pursuant to Rule 415 need be
included in such registration statement at the effective date thereof
with respect to the securities so offered. "Effective Date" shall mean
each date that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective and each date after the date
hereof on which a document incorporated by reference in the
Registration Statement is filed. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to
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in paragraph (a) above contained in the Registration Statement at the
Effective Date, including any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and
the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in which it
shall become effective) and, in the event any post-effective amendment
thereto or Rule 462(b) Registration Statement becomes effective prior
to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be, and shall also include all Rule 430A
Information deemed to be a part of the Registration Statement as of
the time it was declared effective. "Rule 415", "Rule 424", "Rule
430A" and Rule 462 and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" shall mean
information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. "Rule 462(b) Registration
Statement" shall mean a Registration Statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered
by the initial Registration Statement. "Salomon Smith Barney" shall
mean Salomon Brothers Inc. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference.
(d) Each of the Material Corporate Subsidiaries (as defined
herein) other than the Guarantor is duly qualified as a foreign
corporation in good standing in all jurisdictions where their
ownership or leasing of properties or the conduct of their businesses
requires such qualification, except where the failure so to register
or qualify does not have a material adverse effect on the condition
(financial or other), business, prospects or results of operations of
the Company and its Subsidiaries considered as a whole. Pioneer
Natural Resources USA, Inc., a Delaware corporation that was the
predecessor by merger to the Guarantor, was duly qualified as a
foreign corporation in good standing in all jurisdictions on December
29, 1997, where its ownership or leasing of properties or the conduct
of its businesses required such qualification, except where the
failure so to register or qualify would not have had a material
adverse effect on the condition (financial or other), business,
prospects or results of operations of the Company and its Subsidiaries
considered as a whole. The Guarantor is duly qualified as a foreign
corporation in good standing in the State of Texas and is taking all
commercially reasonable actions necessary to become duly qualified as
a foreign corporation in good standing as soon as practicable in all
other jurisdictions where its ownership or leasing of properties or
the conduct of its businesses requires such qualification, except
where the
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failure so to register or qualify would not have a material adverse
effect on the condition (financial or other), business, prospects or
results of operations of the Company and its Subsidiaries considered
as a whole.
2 . Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, (a) at a purchase
price of 98.864% of the principal amount thereof, plus accrued interest, if
any, from January 13, 1998, to the Closing Date, the principal amount of 2008
Notes set forth opposite such Underwriter's name in Schedule II hereto and (b)
at a purchase price of 99.088% of the principal amount thereof, plus accrued
interest, if any, from January 13, 1998 to the Closing Date, the principal
amount of 2028 Notes set forth opposite such Underwriter's name in Schedule II
hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 a.m., New York City time, on January 13, 1998
(or such later date not later than three business days after such date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon order of the Company by wire transfer and
payable in immediately available funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
4. Agreements of the Company and the Guarantor. Each of the
Company and the Guarantor agrees, jointly and severally, with the several
Underwriters that:
(a) Each of the Company and the Guarantor will use its best
efforts to cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become effective. Prior
to the termination of the offering of the Securities, neither the
Company nor the Guarantor will file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished the
Representatives a copy for their review prior to filing and will not
file any such proposed amendment or supplement to which the
Representatives reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
(i) when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii)
when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission
or its staff at any time when a prospectus relating to the Securities
is required to be delivered under the Act for any amendment of the
Registration Statement or any Rule 462(b) Registration Statement or
for any supplement to the Final Prospectus
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or for any additional information, (v) of the issuance by the
Commission at any time when a prospectus relating to the Securities is
required to be delivered under the Act of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the 2008 Notes or 2028 Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. Each of the Company and the Guarantor will use its best
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact 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, or if, at
any time when a prospectus relating to the Securities is required to
be delivered under the Act, it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder,
the Company and the Guarantor promptly will (i) notify the
Representatives of such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance and (iii) supply any
supplemented Final Prospectus to the Representatives in such
quantities as they may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement without exhibits
thereto and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities,
will arrange for the determination of the legality of the Securities
for purchase by institutional investors, will pay the fee of the
National Association of Securities Dealers, Inc. (the "NASD"), in
connection with its review, if any, of the offering and will pay any
fees of the NASD incurred by Salomon Smith Barney in its capacity as a
qualified independent underwriter (the "Independent Underwriter")
pursuant to the rules of the NASD.
(f) Neither the Company nor the Guarantor will take, directly
or indirectly, any action designed to or which constitutes or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or the resale of the
Securities.
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(g) Neither the Company nor the Guarantor shall offer, sell,
contract to sell or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with
the Company or any affiliate of the Company) directly or indirectly,
or announce the offering of, any debt securities issued or guaranteed
by the Company or the Guarantor in an offering to the public (or in a
private offering in which holders of debt securities are granted
rights to have such debt securities registered under the Act or to
exchange such debt securities for other debt securities that are so
registered) from the date hereof until the first business day
following the Closing Date, without the prior written consent of
Salomon Smith Barney.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Guarantor contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company and the Guarantor made
in any certificates pursuant to the provisions hereof, to the performance by
each of the Company and the Guarantor of its obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed
in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) There shall be furnished to the Representatives the
opinion of Vinson & Elkins L.L.P., counsel for the Company and the
Guarantor, dated the Closing Date and addressed to the
Representatives, limited to the federal laws of the United States, the
Delaware General Corporation Law and the laws of the State of Texas,
and in form and substance satisfactory to the Representatives, to the
effect that:
(i) Each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware and has
corporate power and authority to own and lease its properties
and to conduct its business as described in the Final
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as
described in the Final Prospectus as amended or supplemented.
Upon issuance, the Securities will conform in all material
respects to the description thereof in the Final Prospectus as
amended or supplemented;
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(iii) The Indenture and the First Supplemental
Indenture (the "First Supplemental Indenture") to be dated as
of January 13, 1998, among the Company, the Guarantor and the
Trustee have been duly authorized, executed and delivered by
the Company and the Guarantor, as applicable; the Indenture
has been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery thereof by
each party thereto other than the Company and the Guarantor,
the Indenture and the First Supplemental Indenture constitute
legal, valid and binding obligations of the Company and the
Guarantor enforceable against the Company and the Guarantor in
accordance with their terms (subject, as to enforcement of
legal remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and, as to
remedies of specific performance and injunctive and other
forms of equitable relief, to equitable defenses or principles
and to the discretion of the court before which any proceeding
may therefor be brought); The Notes have been duly authorized
and executed and, when authenticated in accordance with the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in
accordance with their terms (subject, as to enforcement of
legal remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and, as to
remedies of specific performance and injunctive and other
forms of equitable relief, to equitable defenses or principles
and to the discretion of the court before which any proceeding
may therefor be brought). The Guarantees have been duly
authorized and executed and constitute the legal, valid and
binding obligations of the Guarantor, enforceable against the
Guarantor in accordance with its terms (subject, as to
enforcement of legal remedies, to applicable bankruptcy,
reorganization, solvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and,
as to remedies of specific performance and injunctive and
other forms of equitable relief, to equitable defenses or
principles and to the discretion of the court for which any
proceeding may therefor be brought);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending or threatened to
which the Company or any of its Subsidiaries is a party or of
which any property of the Company or any of its Subsidiaries
is the subject that would individually or in the aggregate
result in a material adverse change in the condition
(financial or otherwise), business, prospects or results of
operations of the Company and its Subsidiaries considered as a
whole ("Subsidiaries" means (A) any corporation in which the
Company, directly or indirectly, owns more than 50% of the
outstanding voting securities and (B) any limited partnership
in which the Company, or any Subsidiary of the Company, is the
general partner and the Company, directly or indirectly, owns
a majority of the limited partnership interests);
(v) This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantor;
(vi) Neither the Company nor the Guarantor is and,
after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof
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as described in the Final Prospectus, neither of them will be,
an "investment company" or an entity "controlled" by an
"investment company" that is or is required to be registered
under the Investment Company Act of 1940;
(vii) The documents incorporated by reference in the
Final Prospectus as amended or supplemented (other than the
financial statements, including the notes thereto and related
schedules, other financial data and accounting information,
and engineering and reserve data contained therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act
with the Commission, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; provided that such counsel need
express no opinion as to whether any annual, quarterly or
current report filed by MESA Inc. and incorporated by
reference in the Final Prospectus complied as to form in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder
when such report was filed with the Commission;
(viii) The Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Final Prospectus as amended or supplemented,
and any further amendments and supplements thereto made by the
Company or the Guarantor prior to the Closing Date (other than
the financial statements, including the notes thereto and
related schedules, other financial data and accounting
information, and engineering and reserve data contained
therein, as to which such counsel need express no opinion),
comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder; and
(ix) Although such counsel has not verified, is not
passing on, and does not assume responsibility for the
accuracy, completeness, or fairness of the statements
contained in the Registration Statement or the Final
Prospectus (or any documents incorporated by reference
therein), except as otherwise specifically dealt with in their
opinion, no facts have come to the attention of such counsel
that have caused such counsel to believe (a) that the
Registration Statement, as amended prior to the Closing Date
(other than the financial statements, including the notes
thereto and related schedules, other financial data and
accounting information, and engineering and reserve data
contained therein, as to which such
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counsel need express no opinion or belief) contained as of its
effective date or contains as of the Closing Date an untrue
statement of a material fact or omitted or omits, as the case
may be, to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
(b) that the Final Prospectus, as amended or supplemented
prior to the Closing Date (other than the financial
statements, including the notes thereto and related schedules,
other financial data and accounting information, and
engineering and reserve data contained therein, as to which
such counsel need express no opinion or belief) contained as
of the date of this Agreement or contains as of the Closing
Date an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed
or any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Final
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Final
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
(c) The Company shall have furnished to the Representatives
the opinion of Mark L. Withrow, Executive Vice President and General
Counsel of the Company, dated the Closing Date, limited to the federal
laws of the United States, the laws of the State of Texas and the
Delaware General Corporation Law, and in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is duly qualified as a foreign
corporation in good standing in all jurisdictions where its
ownership or leasing of properties or the conduct of its
business requires such qualification, except where the failure
so to register or qualify does not have a material adverse
effect on the condition (financial or other), business,
prospects or results of operations of the Company and its
Subsidiaries considered as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of public officials or officers of the
Company, provided that such counsel shall state that he
believes that both you and he are justified in so relying upon
such opinions and certificates);
(ii) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) the Guarantor, Pioneer Natural Resources (GPC)
Inc., Westpan NGL Co., Pioneer Natural Resources (Canada) Ltd.
("Pioneer Canada"), Chauvco Resources Ltd. ("Chauvco") and
Parker & Parsley Gas Processing Co. (the "Material Corporate
Subsidiaries") have each been duly organized and are validly
existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation (such counsel
being entitled to rely with respect to the opinion in this
clause relating to Pioneer Canada and Chauvco upon opinions of
local counsel, provided that such counsel shall state that he
believes that both you and he are justified in so relying upon
such opinions);
(iv) Each of the Material Corporate Subsidiaries
(other than the Guarantor) is duly qualified as a foreign
corporation in good standing in all jurisdictions
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where their ownership or leasing of properties or the conduct
of their businesses requires such qualification, except where
the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company
and its Subsidiaries considered as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of public officials or officers of the
Company or the Material Corporate Subsidiaries, provided that
such counsel shall state that he believes that both you and he
are justified in so relying upon such opinions and
certificates);
(v) All outstanding shares of capital stock of the
Material Corporate Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable, and are
owned by the Company or by another subsidiary of the Company
free and clear of any liens, encumbrances, equities or claims,
except as described in the Final Prospectus (such counsel
being entitled to rely with respect to the opinion in this
clause relating to Pioneer Canada and Chauvco upon opinions of
local counsel, provided that such counsel shall state that he
believes that both you and he are justified in so relying upon
such opinions);
(vi) Pioneer Resources Producing L.P. (the "Material
Partnership Subsidiary") is validly existing as a limited
partnership under the laws of the State of Delaware, is duly
qualified or registered as a foreign limited partnership or
otherwise qualified as a limited partnership in each
jurisdiction in which the nature of the activities conducted
by it or the nature of the assets owned by it makes such
qualification necessary, except where the failure so to
register or qualify does not have a material adverse effect on
the condition (financial or other), business, prospects or
results of operations of the Company and its Subsidiaries
considered as a whole or on the rights or liabilities of its
limited partners (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
public officials or officers of the general partner of the
Material Partnership Subsidiary provided that such counsel
shall state that he believes that both you and he are
justified in so relying upon such opinions and certificates);
(vii) To the best of such counsel's knowledge and
other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending or threatened to
which the Company of any of its Subsidiaries is a party or of
which any property of the Company or any of its Subsidiaries
is the subject, which would individually or in the aggregate
result in a material adverse change in the condition
(financial or otherwise), business, prospects or results of
operations of the Company and its Subsidiaries considered as a
whole;
(viii) Except as disclosed in the Final Prospectus as
amended or supplemented, and except for any breaches,
violations or defaults that, in the aggregate, would not
either affect the rights of the holders of the Securities or
materially adversely affect the condition (financial or
otherwise), business, prospects or results of operations of
the Company and its Subsidiaries considered as a whole (it
being understood that these exceptions shall not apply to any
violations of the Certificate of Incorporation or By-laws of
the Company or the Guarantor as referred to below), the issue
and sale of the Securities, the compliance by the Company and
the Guarantor with all of the provisions of this
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Agreement with respect to the Securities and the Guarantee, as
applicable, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, (i) any material indenture,
mortgage, deed of trust, note agreement or other agreement or
instrument known to such counsel to which the Company, any of
the Material Corporate Subsidiaries or the Material
Partnership Subsidiary is a party or by which the Company, any
of the Material Corporate Subsidiaries, the Material
Partnership Subsidiary or any of their respective properties
is bound, (ii) the Certificate of Incorporation or By- Laws of
the Company, (iii) the Certificate of Incorporation or By-Laws
of the Guarantor or (iv) any statute, order, rule or
regulation known to such counsel of any United States federal
or state court or governmental agency or body having
jurisdiction over the Company, any of its Material Corporate
Subsidiaries or the Material Partnership Subsidiary or any of
their respective properties;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any United States
federal or state court or governmental agency or body is
required for the issuance and sale of the Securities or the
consummation by the Company and the Guarantor of the
transactions contemplated by this Agreement except such as
have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(x) Such counsel has no reason to believe that any of
the documents incorporated by reference in the Final
Prospectus as amended or supplemented (other than the
financial statements, including the notes thereto and related
schedules, other financial data and accounting information and
engineering and reserve data contained therein, as to which
such counsel need express no opinion or belief), when they
became effective or were filed with the Commission, as the
case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(xi) No holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(xii) Although such counsel has not verified, is not
passing on, and does not assume responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Final Prospectus (or any
documents incorporated by reference therein), except as
otherwise specifically dealt with in his opinion, no facts
have come to the attention of such counsel that have caused
such counsel to believe (a) that the Registration Statement,
as amended prior to the Closing Date (other than the financial
statements, including the notes thereto and related schedules,
other financial data and accounting
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information, and engineering and reserve data contained
therein, as to which such counsel need express no opinion or
belief) contained as of its effective date or contains as of
the Closing Date an untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or (b) that the Final
Prospectus, as amended or supplemented prior to the Closing
Date (other than the financial statements, including the notes
thereto and related schedules, other financial data and
accounting information, and engineering and reserve data
contained therein, as to which such counsel need express no
opinion or belief) contains as of the Closing Date an untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and such counsel does not know of any amendment to
the Registration Statement required to be filed or any
contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Final Prospectus as
amended or supplemented or required to be described in the
Registration Statement or the Final Prospectus as amended or
supplemented which are not filed or incorporated by reference
or described as required.
(d) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of each of the Company and the Guarantor, signed by (A)
the Chairman of the Board or the President and Chief Executive Officer
and (B) the Executive Vice President and Chief Financial Officer, or
any other officer of the Company or the Guarantor, as applicable,
satisfactory to the Representatives dated the Closing Date, to the
effect that:
(i) the representations and warranties of the Company
or the Guarantor, as applicable, in this Agreement are true
and correct on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company or the
Guarantor, as applicable, has complied in all material
respects with all the agreements and satisfied in all material
respects all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's or
the Guarantor's knowledge, as applicable, threatened by
appropriate governmental authorities; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), business, prospects or
results of operations of the Company and its Subsidiaries, or
the Guarantor and its subsidiaries, as applicable, in each
case considered as a whole, whether or not
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arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Execution Time and the Closing Date, each firm of
accountants who have certified the financial statements of the Company
and its Subsidiaries and other relevant entities, including, without
limitation, Parker & Parsley Petroleum Company, MESA Inc. and Chauvco
Resources Ltd. included or incorporated by reference in the
Registration Statement or the Final Prospectus, shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), to the
effect set forth in Annex I hereto, and including such other matters
as the Representatives may reasonably request, in form and substance
satisfactory to the Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its Subsidiaries taken as a
whole the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereto) and the
Final Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time (1) no downgrading shall
have occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 438(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(j) At or prior to the Closing Date, the Officers'
Certificates, Opinions of Counsel and any other document necessary in
order to validly issue the Securities pursuant to the terms of the
Indenture shall have been executed and delivered.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
Unless the parties hereto otherwise agree, the documents
required to be delivered by this Section 5 shall be delivered at the office of
Cravath, Swaine & Moore, counsel for the
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Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company or the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Salomon Smith Barney upon demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of one Underwriters' counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) Each of the Company
and the Guarantor, jointly and severally, agrees to indemnify and hold harmless
each Underwriter (including the Independent Underwriter in its role as
qualified independent underwriter pursuant to the rules of the NASD), the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company and
the Guarantor will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein and (ii) with respect to any untrue
statement or omission of a material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 7(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously furnished
copies of the Final Prospectus to the Representatives, (x) delivery of the
Final Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the Preliminary
Final Prospectus was corrected in the Final Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the Final Prospectus. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
Each of the Company and the Guarantor, jointly and severally,
also will indemnify and hold harmless the Independent Underwriter, its officers
and employees and each
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person, if any, who controls the Independent Underwriter within the meaning of
the Act, from and against any and all losses, claims, damages, liabilities and
judgments incurred as a result of the Independent Underwriter's participation
as a "qualified independent underwriter" within the meaning of Rule 2720 of the
Conduct Rules of the NASD in connection with the offering of the Securities,
except for any losses, claims, damages, liabilities and judgments found in a
final judgment by a court to have resulted from the Independent Underwriter's
or such officer's, employee's or controlling person's wilful misconduct or
gross negligence.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, the Guarantor, each of their
respective directors, each of their respective officers who signs the
Registration Statement and each person who controls the Company or the
Guarantor within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantor to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity, and will reimburse the Company and the
Guarantor and such other persons for any legal or other expenses reasonably
incurred by the Company, the Guarantor or such other persons in connection with
investigating or defending any such action or claim as such expenses are
incurred. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and in the fourth
paragraph, the third sentence of the fifth paragraph, the last sentence of the
seventh paragraph and the eighth paragraph under the heading "Underwriting" in
any Final Prospectus or the Preliminary Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the documents referred to in the foregoing indemnity and you,
as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including one local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a
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reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize in writing the indemnified party to employ
separate counsel at the expense of the indemnifying party. If indemnity is
sought pursuant to the second paragraph of Section 7(a), then, in addition to
such counsel for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate
counsel (in addition to any necessary local counsel) for the Independent
Underwriter in its capacity as a "qualified independent underwriter," its
officers and employees and all persons, if any, who control the Independent
Underwriter within the meaning of the Act, if, in the reasonable judgment of
the Independent Underwriter there may exist a conflict of interest between the
Independent Underwriter and the other indemnified parties. In the case of any
such separate counsel for the Independent Underwriter and such officers,
employees and control persons of the Independent Underwriter, such counsel
shall be designated in writing by the Independent Underwriter. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party shall not be liable under this
Section 7 to any indemnified party regarding any settlement or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent is consented to in writing by such
indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantor and the
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Guarantor and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantor on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no such case shall any Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the Securities)
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Guarantor and the several
Underwriters shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and
the Guarantor on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and the Guarantor on the one hand shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses), and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the Company or the Guarantor, on the one hand, or the Underwriters,
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Guarantor and the Underwriters agree that Salomon
Smith Barney
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will not receive any additional benefits hereunder for services as Independent
Underwriter in connection with the offering and sale of the Securities. The
Company, the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligation
of the Underwriters to contribute pursuant to this Section 7(d) shall be
several in proportion to their respective underwriting commitments, and not
joint. For purposes of this Section 7, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company or
the Guarantor within the meaning of either the Act or the Exchange Act, each
officer of the Company or the Guarantor who shall have signed the Registration
Statement and each director of the Company or the Guarantor shall have the same
rights to contribution as the Company or the Guarantor, as applicable, subject
in each case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Securities set forth opposite
their names in Schedule II hereto bears to the aggregate amount or number of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of 2008 Notes or
2028 Notes which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of 2008 Notes or 2028
Notes, as applicable, set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the 2008 Notes or 2028 Notes, as applicable, and
if such nondefaulting Underwriters do not purchase all the 2008 Notes or 2028
Notes, as applicable, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and the Guarantor and any nondefaulting
Underwriter for damages occasioned by its default hereunder. For purposes of
this Agreement, "Business Day" shall mean any day other than a Saturday, Sunday
or legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to
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make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives or the
Underwriters, will be mailed, delivered or telegraphed and confirmed to them
(or to the Underwriters in care of the Representatives), at the address of the
Representatives specified in Schedule I hereto; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 1400 Williams
Square West, 5205 North O'Connor Boulevard, Irving, Texas 75039, attention M.
Garrett Smith.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
individuals and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section holdings used herein are for
convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your
19
acceptance shall represent a binding agreement among the Company, the Guarantor
and the several Underwriters.
Very truly yours,
Pioneer Natural Resources Company,
By:/s/ M. GARRETT SMITH
----------------------------------
Name: M. Garrett Smith
Title: Executive Vice President and
Chief Financial Officer
Pioneer Natural Resources USA, Inc.
By: /s/ M. GARRETT SMITH
----------------------------------
Name: M. Garrett Smith
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: Salomon Brothers Inc
Chase Securities Inc.
J. P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
NationsBanc Montgomery Securities LLC
By: /s/ JAMES C.V. ROGERS
-------------------------------------
Name: James C.V. Rogers
Title: Director
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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ANNEX I
Pursuant to Section 5(f) of the Underwriting Agreement, the
Appropriate Accountants shall have furnished to the Representatives a letter or
letters, dated respectively as of the Execution Time and as of the Closing Date
(which may be in the form of a "bring down" letter), in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
applicable published rules and regulations thereunder and that they have
audited the year-end financial information included or incorporated in the
Registration Statement and the Final Prospectus and performed a review of the
unaudited interim financial information included or incorporated in the
Registration Statement and the Final Prospectus in accordance with Statement of
Auditing Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements
included in the Registration Statement and the Final Prospectus
(including those incorporated therein by reference) and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations,
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Relevant Entity (as defined
herein); their limited review in accordance with standards established
by the American Institute of Certified Public Accountants under
Statement of Auditing Standards No. 71 of any unaudited interim
financial information as included in the Registration Statement and
Final Prospectus (including those incorporated therein by reference),
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter, a reading of the minutes of the
meetings of the stockholders, directors, and any committees of the
Relevant Entity the Representatives may reasonably request; and
inquiries of certain officials of the Relevant Entity who have
responsibility for financial and accounting matters of the Relevant
Entity as to transactions and events subsequent to the date of the
most recent financial statements included in the Final Prospectus,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in
the Registration Statement and the Final Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; or said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Final Prospectus; or
(2) with respect to the period subsequent to the date
of the most recent financial statements (other than capsule
information), audited or unaudited, included or incorporated
in the Registration Statement and the
21
2
Final Prospectus, there were any changes, at a specified date
not more than five business days prior to the date of the
letter, in the long-term debt, less current maturities, of the
Relevant Entity or capital stock of the Relevant Entity or
decreases in the total stockholders' equity of the Relevant
Entity or other balance sheet items the Representatives may
reasonably request as compared with the amounts shown on the
most recent financial statements included or incorporated in
the Registration Statement and the Final Prospectus to such
specified date, or there were any decreases, as compared with
the corresponding period in the preceding year or the
preceding quarter in net revenues or income before income
taxes or in total or per share amounts of net income of the
Relevant Entity or any other income statement items as the
Representatives may reasonably request, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives, or
(3) the information included in the Registration
Statement and Final Prospectus in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation), and
Item 503 (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K, and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Relevant Entity) set forth in the
Registration Statement and the Final Prospectus, including the
information in Items 1, 2, 6, 7 and 11 of any Annual Report on Form
10-K, included or incorporated in the Registration Statement and the
Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in any Relevant Entity's
Quarterly Reports on Form 10-Q, if any, incorporated in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Relevant Entity, excluding any questions of
legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Relevant Entity and the acquired
entity who have responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of such statements.
References to the Final Prospectus in this Annex I include any
supplement thereto at the date of the letter.
22
3
As used in Annex 1, "Appropriate Accountant" means the firm of
accountants who certified that the Relevant Entity's financial statements were
prepared in accordance with generally accepted accounting principles and
complied with the Act and the Exchange Act and the applicable published rules
and regulations thereunder.
As used in Annex 1, the "Relevant Entity" means any entity
whose financial statements are included or incorporated by reference in the
Registration Statement or the Final Prospectus which may include, without
limitation, the Company, Parker & Parsley Petroleum Company, MESA Inc. and
Chauvco Resources Ltd., as the case may be.
23
SCHEDULE I
Representatives: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Fax Number (212) 783-2278
Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Fax Number (212) 834-6170
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Fax Number (212) 648-5939
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, NY 10036
Fax Number (212) 761-0353
NationsBanc Montgomery Securities LLC
NationsBank Corporate Center
100 North Tryon Street
Charlotte, NC 28255
Fax Number (704) 388-9939
24
SCHEDULE II
Principal Amount Principal Amount
of 2008 Notes of 2028 Notes
Underwriter To Be Purchased To Be Purchased
- ----------- ---------------- ----------------
Salomon Brothers Inc. ............................ $105,100,000 $ 75,500,000
Chase Securities Inc. ............................ 105,100,000 75,500,000
J. P. Morgan Securities Inc. ..................... 46,600,000 33,000,000
Morgan Stanley & Co. Incorporated ................ 46,600,000 33,000,000
NationsBanc Montgomery Securities LLC. ........... 46,600,000 33,000,000
------------ ------------
Total................................. $350,000,000 $250,000,000
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