-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Fx0kNMfIwiXSYKBZRO7ROGIm/VsAQEKfLgFbqEkKmAyz3lhpGKHbD0lflj+91lSv BMPp02Wnl4kWE5tZjic5zg== 0000950134-02-011481.txt : 20020920 0000950134-02-011481.hdr.sgml : 20020920 20020919203211 ACCESSION NUMBER: 0000950134-02-011481 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20020917 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020920 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OCEAN ENERGY INC /TX/ CENTRAL INDEX KEY: 0000320321 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 741764876 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08094 FILM NUMBER: 02768170 BUSINESS ADDRESS: STREET 1: 1001 FANNIN STE 1600 CITY: HOUSTON STATE: TX ZIP: 77002-6714 BUSINESS PHONE: 7132656000 MAIL ADDRESS: STREET 1: 1001 FANNIN, SUITE 1600 CITY: HOUSTON STATE: TX ZIP: 77002-6714 FORMER COMPANY: FORMER CONFORMED NAME: SEAGULL PIPELINE CORP DATE OF NAME CHANGE: 19830815 FORMER COMPANY: FORMER CONFORMED NAME: SEAGULL ENERGY CORP DATE OF NAME CHANGE: 19920703 8-K 1 h99923e8vk.txt OCEAN ENERGY, INC. - DATED 9/17/2002 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (date of earliest event reported): September 17, 2002 Ocean Energy, Inc. (Exact name of registrant as specified in its charter) Delaware 01-08094 74-1764876 (State of Incorporation) (Commission File Number) (I.R.S. Employer Identification Number) 1001 Fannin, Suite 1600 Houston, Texas 77002 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (713) 265-6000 ITEM 5. OTHER EVENTS On September 17, 2002, Ocean Energy, Inc., a Delaware corporation (the "Company"), entered into a Purchase Agreement, filed herewith as Exhibit 1.1 and incorporated herein by reference, with the underwriters named therein with respect to the issue and sale by the Company of $400,000,000 aggregate principal amount of 4.375% Senior Notes due October 1, 2007 (the "Senior Notes") in an underwritten public offering. The Senior Notes are expected to be issued on September 20, 2002 pursuant to the Company's Senior Indenture dated as of September 28, 2001 among the Company, Ocean Energy, Inc. (a Louisiana corporation), as guarantor, and The Bank of New York, as trustee. The Senior Notes, the terms and form of which are filed herewith as part of Exhibit 4.1 and incorporated herein by reference, were registered under the Securities Act of 1933, as amended. The net proceeds from the sale of the Senior Notes are estimated to be approximately $396 million, after deducting underwriting discounts and commissions and expenses associated with the offering thereof. The Company intends to use these proceeds to repay indebtedness under the Company's revolving credit facility. The Company files herewith those exhibits listed in Item 7(c) below relating to its Registration Statement on Form S-3 (File No. 333-67136) as filed with the Securities and Exchange Commission on August 9, 2001, and as amended on August 24, 2001. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibit No. Description of Exhibit - ----------- ---------------------- 1.1 Purchase Agreement dated as of September 17, 2002 by and among the Company and the underwriters named therein. 4.1 Officers' Certificate evidencing the terms of the 4.375% Senior Notes due October 1, 2007, including the form of global note relating thereto. 12.1 Computation of Ratio of Earnings to Fixed Charges. 2 SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: September 19, 2002 Ocean Energy, Inc. By: /s/ ROBERT K. REEVES ------------------------------- Robert K. Reeves Executive Vice President, General Counsel and Secretary 3 EXHIBIT INDEX Exhibit No. Description of Exhibit - ----------- ---------------------- 1.1 Purchase Agreement dated as of September 17, 2002 by and among the Company and the underwriters named therein. 4.1 Officers' Certificate evidencing the terms of the 4.375% Senior Notes due October 1, 2007, including the form of global note relating thereto. 12.1 Computation of Ratio of Earnings to Fixed Charges. EX-1.1 3 h99923exv1w1.txt PURCHASE AGREEMENT DATED 9/17/2002 EXHIBIT 1.1 OCEAN ENERGY, INC. (A DELAWARE CORPORATION) OCEAN ENERGY, INC. (A LOUISIANA CORPORATION) $400,000,000 4.375 % SENIOR NOTES DUE OCTOBER 1, 2007 PURCHASE AGREEMENT September 17, 2002 GOLDMAN, SACHS & CO. MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated as Representatives of the several Underwriters c/o GOLDMAN, SACHS & CO. 85 Broad Street 15th Floor New York, New York 10004 c/o MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED 4 World Financial Center New York, New York 10080 Ladies and Gentlemen: 1. Introductory. Ocean Energy, Inc., a Delaware corporation (the "Company") and Ocean Energy, Inc., a Louisiana corporation (the "Guarantor"), confirm their agreement with Goldman, Sachs & Co. ("Goldman") and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters named in Schedule A hereto (collectively, the "Underwriters", which term shall also include any underwriter substituted as hereinafter provided in Section 11 hereof), for whom Goldman and Merrill Lynch acting as representatives (in such capacity, the "Representatives"), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in said Schedule A of $400,000,000 aggregate principal amount of the Company's 4.375% Senior Notes due October 1, 2007 (the "Securities"). The Securities are to be issued pursuant to an indenture dated as of September 28, 2001 (the "Indenture") among the Company, as issuer, the Guarantor, as guarantor, and The Bank of New York, a New York banking corporation, as trustee (the "Trustee"). The term "Indenture," as used herein, includes the Officer's Certificate (as defined in the Indenture) establishing the form and terms of the Securities pursuant to Sections 2.3 and 2.4 of the Indenture. The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered. The Company has filed with the Securities and Exchange Commission (the "Commission") registration statements (No. 333-67136, 333-79765, 333-34841 and 33-64051, including a combined prospectus pursuant to Rule 429 covering the registration of the Securities under the Securities Act of 1933, as amended (the "1933 Act"), including the related preliminary prospectus or prospectuses, and the registration statements have become effective. Such registration statements, as amended at the time of this Agreement, are hereinafter referred to as the "Registration Statement", and the combined prospectus included in such Registration Statement, as supplemented as of the date hereof to reflect the terms of the Securities and the terms of offering thereof, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the 1933 Act, including all material incorporated by reference therein, is hereinafter referred to as the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the 1933 Act. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be. 2. Representations and Warranties by the Company and the Guarantor. The Company and the Guarantor represent and warrant to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 3(b) hereof, and agree with each Underwriter, as follows: (a) The Company and the Guarantor meet the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statements has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company or the Guarantor, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. At the respective times the Registration Statement became effective and at the Closing Time, the Registration Statement, complied and will comply in all material respects with the requirements of the 1933 Act, the Trust Indenture Act of 1939, as amended (the "1939 Act") and the applicable rules and regulations of the Commission (the "Rules and Regulations"), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact -2- necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act and the Rules and Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (b) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act or the 1934 Act and the Rules and Regulations, as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at the Closing Time, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company and the Guarantor have been duly incorporated and each is an existing corporation in good standing under the laws of the State of Delaware and the State of Louisiana, respectively, with power and authority (corporate and other) to own their respective properties and conduct their respective businesses as described in the Prospectus; and each of the Company and the Guarantor are duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify, individually or in the aggregate, would not have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole ("Material Adverse Effect"). (d) Each subsidiary of the Company has been duly incorporated, organized or formed and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, organization or formation with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except as would not have, individually or in the aggregate, a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects, except for such liens, encumbrances and defects that would not, individually or in the aggregate, have a Material Adverse Effect. (e) The Indenture has been duly authorized, authenticated, issued and delivered and has been duly qualified under the 1939 Act; the Securities have been duly authorized; and when the Securities are delivered and paid for pursuant to this Agreement at the Closing Time (as defined below), such Securities will have been duly executed, authenticated, issued and delivered and will conform in all material respects to the description thereof contained in the Prospectus and the Indenture and such -3- Securities will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The guarantee of the securities (the "Guarantee") has been duly authorized, executed and delivered and constitutes the valid and legally binding obligation of the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (f) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance and sale of the Securities by the Company, including the Guarantee by the Guarantor, except such as have been obtained and made under the 1933 Act and the 1939 Act and such as may be required under state securities laws. (g) The execution, delivery and performance of the Indenture and this Agreement, and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of its or their respective properties, or any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or the charter or by-laws (or comparable organizational documents) of the Company or any such subsidiary, in each case, except for such breaches, violations or defaults that would not, individually or in the aggregate, have a Material Adverse Effect, and the Company has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement. (h) The execution, delivery and performance of the Indenture and this Agreement, and the execution and delivery of the Guarantee and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Guarantor or any subsidiary of the Guarantor or any of its or their respective properties, or any agreement or instrument to which the Guarantor or any such subsidiary is a party or by which the Guarantor or any such subsidiary is bound or to which any of the properties of the Guarantor or any such subsidiary is subject, or the charter or by-laws (or comparable organizational documents) of the Guarantor or any such subsidiary, in each case, except for such breaches, violations or defaults that would not, individually or in the aggregate, have a Material Adverse Effect, and the Guarantor has full power and authority to authorize, execute and deliver the Guarantee. (i) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor. (j) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect. -4- (k) No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent that might have a Material Adverse Effect. (l) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect. (m) Except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim. (n) Except as disclosed in the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, or materially and adversely affect the ability of the Company to perform its obligations under the Indenture or this Agreement or the Guarantor to perform its obligations under the Guarantee, or which are otherwise material in the context of the sale of the Securities; and to the Company's knowledge, no such actions, suits or proceedings are threatened or contemplated. (o) The financial statements included in the Registration Statement and the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown in conformity with generally accepted accounting principles in the United States applied on a consistent basis. (p) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole, and, except as disclosed in or contemplated by the Prospectus, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (q) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940. Officer's Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. -5- 3. Sale and Delivery to Underwriters; Closing. (a) Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth in Schedule B, the aggregate principal amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof. (b) Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of King & Spalding, 1100 Louisiana Street, Suite 4000, Houston, Texas 77002, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 11), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called "Closing Time"). Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them or to the Trustee as custodian for DTC (defined below) of the Global Securities (defined below) representing all of the Securities. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. Goldman and Merrill Lynch, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. (c) Denominations; Registration. The Company will deliver against payment of the purchase price the Securities in the form of one or more permanent global Securities in definitive form (the "Global Securities") deposited with the Trustee as custodian for The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Prospectus. 4. Covenants of the Company. The Company covenants with each Underwriter as follows: (a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5)) not later than the second business day following the execution and delivery of this Agreement. (b) For so long as a prospectus relating to the Securities is required to be delivered under the 1933 Act in connection with sales by any Underwriter or dealer, the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings -6- in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an 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 it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the 1933 Act. (e) The Company will furnish to the Underwriters copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriters reasonably requests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution. (g) So long as the Securities remain outstanding, the Company will furnish or make available to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish or make available to the Representatives as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the 1934 Act or mailed to stockholders. (h) The Company will not offer, sell, contract to sell, grant any option for, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the 1933 Act relating to debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Time and the termination of the underwriting syndicate. -7- (i) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds". 5. Payment of Expenses. (a) Expenses. The Company and the Guarantor will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the printing and delivery to the Underwriters of this Agreement, any Agreement among Underwriters, and the preparation, printing and delivery of the Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any charges of DTC in connection therewith, (iv) the fees and disbursements of the Company's counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 4(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery of copies of each preliminary prospectus, and of the Prospectus and any amendments or supplements thereto, (vii) the preparation, printing and delivery to the Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, and (ix) any fees payable in connection with the rating of the Securities. (b) Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 6 or Section 10(a)(i) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters. 6. Conditions of Underwriters' Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company and the Guarantor contained in Section 2 hereof or in certificates of any officer of the Company or any subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions: (a) On or prior to the date of this Agreement, the Underwriters shall have received a letter, dated the date of delivery thereof, of KPMG LLP confirming that they are independent public accountants within the meaning of the 1933 Act and the applicable published Rules and Regulations thereunder and stating to the effect that: (i) in their opinion the financial statements and any schedules and any summary of earnings examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related published Rules and Regulations; (ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included in the Registration Statement; -8- (iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) the unaudited financial statements, if any, and any summary of earnings included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements and summary of earnings for them to be in conformity with generally accepted accounting principles; (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of such letter, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net assets, as compared with amounts shown on the latest balance sheet included in the Prospectus, except as expressly disclosed in such letter; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in consolidated net sales, net operating income per share amounts of consolidated income before extraordinary items or net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission. -9- (c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating). (d) The Underwriters shall have received an opinion, dated the Closing Time, of Vinson & Elkins L.L.P., counsel for the Company, to the effect that: (i) Each of the Company and the Guarantor is a corporation in good standing under the laws of its state of incorporation with corporate power and authority to own its respective properties and conduct its respective business as described in the Prospectus; (ii) The Indenture has been duly authorized, executed and delivered by the Company and the Guarantor and has been duly qualified under the 1939 Act; the Securities delivered at the Closing Time have been duly authorized, executed and delivered by the Company and conform in all material respects to the description thereof contained in the Prospectus; and the Indenture and the Securities delivered at the Closing Time, when they have been properly authenticated by the Trustee in accordance with the Indenture, constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (iii) The Guarantee has been duly authorized, executed and delivered by the Guarantor and conforms in all material respects to the description thereof contained in the Prospectus; and the Guarantee constitutes the valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (iv) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940; (v) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Securities by the Company or in connection with the execution and delivery of the Guarantee by the Guarantor, except such as have been obtained and made under the 1933 Act and the 1939 Act and such as may be required under state securities laws; (vi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the execution and delivery of the Guarantee will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or the -10- Guarantor or any of their respective properties (other than federal and state securities laws, as to which such counsel need express no opinion except for those opinions contained in paragraphs 6(d)(v) and 6(d)(vii)), or (ii) any agreement or instrument to which the Company or the Guarantor is a party or by which the Company or the Guarantor is bound or to which any of the properties of the Company or the Guarantor is subject and that was included as an exhibit to any of the Company's Annual Report on Form 10-K for the year ended December 31, 2001, the Company's Quarterly Reports on Form 10-Q for the three months ended March 31, 2002 and June 30, 2002 or the Company's Current Reports on Form 8-K filed by the Company with the Commission since the beginning of the Company's current fiscal year (except for agreements relating to employee benefit plans and employment agreements, as to which such counsel need express no opinion), or (iii) the charter or by-laws of the Company or the Guarantor; (vii) The Registration Statement has become effective under the 1933 Act, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act, and the registration statement relating to the Securities, as of its effective date, the Registration Statement and the Prospectus, as of the date of this Agreement, and any amendment or supplement thereto, as of its date, appear on their face to comply as to form in all material respects with the requirements of the 1933 Act, the 1939 Act and the Rules and Regulations; and (viii) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor. Such opinion shall also contain a statement to the effect that such counsel has no reason to believe that (i) the Registration Statement, as of the date of its effectiveness (other than information relating to oil and gas reserves and production and the financial statements and notes thereto and the other financial data contained therein or omitted therefrom, as to which such counsel need not comment) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) the Prospectus (other than information relating to oil and gas reserves and production and the financial statements and notes thereto and the other financial data contained therein or omitted therefrom, as to which such counsel need not comment) at the Closing Time and at the time such Prospectus was issued contains or contained any untrue statement of a material fact or omits or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (e) The Underwriters shall have received an opinion, at the Closing Time, of Robert K. Reeves, General Counsel of the Company, or his successor, to the effect that: (i) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents under the captions "Business-U.S. Regulation," "Business-Environmental Matters" and "Legal Proceedings" are accurate and fairly present the information required to be shown; and such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required or of any contracts or documents of a -11- character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement or the Prospectus; (f) The Representative shall have received from King & Spalding, counsel for the Underwriters, such opinion or opinions, at the Closing Time, with respect to the incorporation of the Company, the validity of the Securities delivered at the Closing Time, the Registration Statement, the Prospectus and other related matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Underwriters shall have received a certificate, at the Closing Time, of the President or any Vice President and a principal financial or accounting officer of each of the Company and the Guarantor, respectively, in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company and the Guarantor in this Agreement are true and correct, that the Company and the Guarantor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate. (h) The Underwriters shall have received a letter, at the Closing Time, of KPMG LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Time for the purposes of this subsection. (i) If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 5(b), 7, 8 and 9 shall survive any such termination and remain in full force and effect. 7. Indemnification. (a) Indemnification of Underwriters. The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any -12- amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) and provided, further, that with respect to any untrue statement or alleged untrue statement in or omission or alleged omission from any preliminary prospectus the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned, to the extent that a prospectus relating to such Securities was required to be delivered by such Underwriter under the 1933 Act in connection with such purchase and any such loss, claim, damage or liability of such Underwriter results from the fact that 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 Prospectus (exclusive of material incorporated by reference) if the Company had previously furnished copies thereof to such Underwriter. (b) Indemnification of Company, Guarantor, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, the Guarantor, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). (c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have -13- otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section 8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. 8. Contribution. If the indemnification provided for in Section 7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 and the Guarantor on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover. The relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8. The aggregate amount of -14- losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company or the Guarantor, each officer of the Company or the Guarantor who signed the Registration Statement, and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company or the Guarantor. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the principal amount of Securities set forth opposite their respective names in Schedule A hereto and not joint. 9. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company and the Guarantor or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters. 10. Termination Agreement. (a) Termination; General. The Representatives may terminate this Agreement by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum prices for -15- trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (iv) if a banking moratorium has been declared by either Federal or New York authorities. (b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 5(b), 7, 8 and 9 shall survive such termination and remain in full force and effect. 11. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at Closing Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the "Defaulted Securities"), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then: (a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Representatives or the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 11. 12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives c/o Goldman, Sachs & Co. at 85 Broad Street, 15th Floor, Attention: Registration Department and c/o Merrill Lynch & Co. at 4 World Financial Center, New York, New York 10080, Attention: William Rogers; and notices to the Company and the Guarantor shall be directed to it at 1001 Fannin Street, Suite 1600, Houston, Texas 77002, Attention: Chief Financial Officer. 13. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company, the Guarantor and their respective successors. Nothing expressed or -16- mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company and the Guarantor and their respective successors and the controlling persons and officers and directors referred to in Sections 7 and 8 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company and the Guarantor and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company and the Guarantor hereby submit to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. 15. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof. 16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. -17- If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters, the Company and the Guarantor in accordance with its terms. Very truly yours, OCEAN ENERGY, INC., a Delaware corporation By: /s/ Robert K. Reeves ------------------------------------- Robert K. Reeves Executive Vice President and General Counsel OCEAN ENERGY, INC., a Louisiana corporation By: /s/ Robert K. Reeves ------------------------------------- Robert K. Reeves Executive Vice President and General Counsel CONFIRMED AND ACCEPTED as of the date first above written: GOLDMAN, SACHS & CO. MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated By: Goldman, Sachs & Co. By /s/ Goldman, Sachs & Co. ----------------------------------------- Authorized Signatory By: Merrill Lynch, Pierce, Fenner & Smith Incorporated By /s/ Christopher D. Mize ----------------------------------------- Authorized Signatory For themselves and as Representatives of the other Underwriters named in Schedule A hereto. -18- SCHEDULE A
PRINCIPAL AMOUNT OF UNDERWRITER SECURITIES ----------- ---------- Goldman, Sachs & Co.......................................................... $130,000,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated............................................................ $130,000,000 BMO Nesbitt Burns Corp....................................................... $ 20,000,000 BNP Paribas Securities Corp.................................................. $ 20,000,000 BNY Capital Markets, Inc..................................................... $ 20,000,000 Credit Lyonnais Securities (USA) Inc......................................... $ 20,000,000 Deutsche Bank Securities Inc................................................. $ 20,000,000 Scotia Capital (USA), Inc.................................................... $ 20,000,000 TD Securities (USA) Inc...................................................... $ 20,000,000 ------------ Total............................................. $400,000,000 ============
SCHEDULE B OCEAN ENERGY, INC. (a Delaware corporation) OCEAN ENERGY, INC. (a Louisiana corporation) $400,000,000 4.375% Senior Notes due 2007 1. The initial public offering price of the Securities shall be 99.739% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. 2. The purchase price to be paid by the Underwriters for the Securities shall be 99.089% of the principal amount thereof. 3. The interest rate on the Securities shall be 4.375% per annum. 4. The redemption price for the Securities redeemed at the option of the Company shall be based on the terms in the Prospectus, including the Treasury Rate plus 25 basis points, plus accrued interest on the principal amount being redeemed to the redemption. EX-4.1 4 h99923exv4w1.txt OFFICERS' CERTIFICATE EXHIBIT 4.1 OCEAN ENERGY, INC. OFFICERS' CERTIFICATE --------------- EVIDENCING 4.375% SENIOR NOTES DUE 2007 Officers' Certificate to Trustee Robert K. Reeves, Executive Vice President, General Counsel and Secretary, and Winston M. Talbert, Vice President and Treasurer of Ocean Energy, Inc., a Delaware corporation (the "Company"), pursuant to Sections 2.1 and 2.3 of the Senior Indenture, dated as of September 28, 2001, (the "Indenture") among the Company, Ocean Energy, Inc. (a Louisiana corporation), as guarantor (the "Guarantor"), and The Bank of New York, as trustee (the "Trustee"), in connection with the offering of $400,000,000 aggregate principal amount of the Company's 4.375% Senior Notes due 2007 (the "Senior Notes"), each hereby certifies that, to the best of his knowledge, after reasonable investigation: 1. The Board of Directors (the "Board") has established the form of the Senior Notes pursuant to Section 2.1 of the Indenture, and such form is set forth in the specimen of the Senior Notes attached as Exhibit A. 2. The Executive Committee of the Board has established the terms of the Senior Notes pursuant to Section 2.3 of the Indenture, and such terms are set forth in Exhibit B. IN WITNESS WHEREOF, the undersigned have duly executed this Officers' Certificate as of the 20th day of September, 2002. OCEAN ENERGY, INC. By: --------------------------------- Name: Robert K. Reeves Title: Executive Vice President, General Counsel and Secretary By: --------------------------------- Name: Winston M. Talbert Title: Vice President and Treasurer EXHIBIT A THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. OCEAN ENERGY, INC. 4.375% Senior Note due 2007 NO. 001 CUSIP NO. 67481EAB2 OCEAN ENERGY, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company," which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of FOUR HUNDRED MILLION DOLLARS on October 1, 2007, and to pay interest thereon from September 20, 2002 or from the most recent interest payment date to which interest has been paid or duly provided for, semiannually in arrears on April 1 and October 1 in each year, commencing April 1, 2003, at the rate of 4.375% per annum, until the principal hereof is fully paid or made available for full payment. The interest so payable, and punctually paid or duly provided for, on any interest payment date will, as provided in such Indenture, be paid to the Person in whose name this Note is registered at the close of business on the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding such interest payment date (a "Regular Record Date"). Notwithstanding the foregoing, if and to the extent the Company shall default in the payment of the interest due on such interest payment date, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and such defaulted interest shall instead be paid to the Person in whose name this Note is registered (a) at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Company to the Holders of Notes not less than 15 days preceding such subsequent record date or (b) as determined by such other procedure as is mutually acceptable to the Company and the Trustee, all as more fully described in the Indenture. Payment of the principal of (and premium, if any) and interest on this Note shall be made at the Corporate Trust Office of the Trustee in New York, New York, or at such other office or agency of the Company as it may designate for such purpose pursuant to the Indenture hereinafter referred to, in such immediately available funds of the United States of America as at the time of payment are legal tender for payment of public and private debts. Reference is hereby made to the further provisions of this Note set forth below, which further provisions shall for all purposes have the same effect as if set forth in this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to below by manual signature of an authorized officer, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: September 20, 2002 OCEAN ENERGY, INC. By: --------------------------------- Winston M. Talbert Vice President and Treasurer ATTEST: - ------------------------------------ Robert K. Reeves Secretary 2 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture. THE BANK OF NEW YORK as Trustee By: --------------------------------- Authorized Officer 3 [REVERSE OF SECURITY] This Note is one of a duly authorized issue of Securities of the Company (such issue being herein called the "Notes"), issued and to be issued in one or more series under the Senior Indenture, dated as of September 28, 2001 (herein, together with the Board Resolution establishing the terms of the Notes, called the "Indenture"), among the Company, Ocean Energy, Inc. (a Louisiana corporation), as guarantor (herein called the "Guarantor") and The Bank of New York, as Trustee (herein called the "Trustee," which term includes any additional successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. Capitalized terms used but not defined herein are defined in the Indenture and used herein with the same meanings ascribed to them therein. This Note is a Global Security representing the entire principal amount of the series designated on the face hereof, limited in aggregate principal amount to $400,000,000 except as set forth in the Indenture; provided, however, that the Company may, without the consent of the holders of the Notes issue additional notes under the Indenture, having the same ranking and the same interest, maturities and other terms as the Notes. Any such additional notes may, together with the Notes, constitute a single series under the Indenture and have the same CUSIP number as the Notes. The Guarantor will guarantee the Company's obligations on the Notes subject to and in accordance with the terms of the Indenture. As further described in the Indenture, the Notes shall be redeemable in whole or in part, at the Company's option at any time, at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments on such Notes, discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points, plus accrued interest on the principal amount being redeemed to the redemption date. As further described in the Indenture, upon the occurrence of a Change of Control Triggering Event, the Company shall be obligated to make an offer to purchase all of the then outstanding Notes (a "Change of Control Offer"), and shall purchase, on a Business Day (the "Change of Control Purchase Date") not more than 70 nor less than 30 days following the Change of Control Triggering Event, all of the then outstanding Notes validly tendered pursuant to such Change of Control Offer, at a purchase price (the "Change of Control Purchase Price") equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the Change of Control Purchase Date. The Notes shall not be subject to a sinking fund requirement. The Indenture contains provisions for defeasance of the entire indebtedness of the Notes upon compliance by the Company with certain conditions set forth therein. 1 If an Event of Default with respect to the Notes shall occur and be continuing, the unpaid principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture contains provisions permitting the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes then Outstanding under the Indenture and affected thereby, evidenced as provided in the Indenture, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Notes. It is also provided in the Indenture that the Holders of a majority in aggregate principal amount of the Notes then Outstanding may on behalf of the Holders of all of the Notes waive any past default or Event of Default under the Indenture and its consequences except a default in the payment of the principal of or interest on any of the Notes. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and at the rates and in the coin or currency herein provided. As set forth in, and subject to, the provisions of the Indenture, no Holder of any Note shall have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of default and the continuance thereof, as provided in the Indenture, and unless the Holders of not less than 25% in principal amount of the Notes then Outstanding shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall have failed to institute such proceeding within 60 days; provided, however, that such limitations shall not without the consent of such Holder impair the right of a Holder hereof to institute suit for the enforcement of payment of the principal of or interest on this Note on or after the respective due dates expressed herein. This Note shall be exchangeable for Notes registered in the names of Persons other than the Depositary with respect to such series or its nominee only as provided in this paragraph. This Note shall be so exchangeable if (i) such Depositary notifies the Company that it is unwilling, unable or ineligible to continue as Depositary for this Note and a successor Depositary is not appointed by the Company within 90 days or (ii) the Company executes and delivers to the Trustee a written order providing that this Note shall be so exchangeable. Notes so issued in exchange for this Note shall be of the same series and of like tenor, in authorized denominations and in the aggregate having the same unpaid principal amount as this Note and registered in such names as such Depositary shall direct. Individual Notes so issued will be issued in registered form and denominations, unless otherwise specified by the Company, of $1,000 and integral multiples thereof. 2 As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the security register maintained for that purpose, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon on or more new Notes of this series, and of like tenor, of authorized denominations and for the same aggregate unpaid principal amount, shall be issued to the designated transferee or transferees. At the date of the original issuance of this Note, such office or agency of the Company is maintained by the Trustee at its Corporate Trust Office, 101 Barclay Street, Floor 8 West, New York, New York. Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All payments made to or upon the order of such registered Holder shall, to the extent of the sum or sums so paid, satisfy and discharge the liability for moneys payable on this Note. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused a CUSIP number to be printed on this Note as a convenience to the Holder hereof. No representation is made as to the accuracy of such number and reliance may be placed only on the other identifying information printed hereon. Interest on this Note shall be computed on the basis of a 360-day year comprised of twelve 30-day months. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 3 ASSIGNMENT FORM I or we assign and transfer this Note to - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type name, address and zip code of assignee or transferee) - -------------------------------------------------------------------------------- (Insert Social Security or other identifying number of assignee or transferee) and irrevocably appoint --------------------------------------------------------- agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. Dated: Signed: ------------------------------ ---------------------------------- (Sign exactly as name appears above or on the other side of this Note) Signature Guarantee: ----------------------------------------------------- Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee) 4 EXHIBIT B In addition to the terms provided in the Senior Indenture, dated as of September 28, 2001, (the "Indenture") among Ocean Energy, Inc., a Delaware corporation (the "Company"), Ocean Energy, Inc., a Louisiana corporation, as guarantor (the "Guarantor"), and The Bank of New York, as trustee (the "Trustee"), in connection with the offering of $400,000,000 aggregate principal amount of the Company's 4.375% Senior Notes due 2007 (the "Senior Notes"), with respect to Securities of a series issued thereunder, the terms of the Senior Notes shall be as follows (with all capitalized terms not defined herein having the respective meanings ascribed thereto in the Indenture): (1) Principal Amount. The aggregate principal amount of the Senior Notes that may be authenticated and delivered under the Indenture shall initially be limited to $400,000,000 (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture), provided, however, that the Company may, without the consent of the holders of the Senior Notes issue additional notes under the Indenture, having the same ranking and the same interest, maturities and other terms as the Senior Notes. Any such additional notes may, together with the Senior Notes, constitute a single series under the Indenture and have the same CUSIP number as the Senior Notes. (2) Stated Maturity. The principal of the Senior Notes shall be payable in full on October 1, 2007, unless earlier redeemed in accordance herewith. (3) Interest. The unpaid principal of the Senior Notes shall bear interest at the rate of 4.375% per annum from September 20, 2002 or from the most recent interest payment date to which interest has been paid or duly provided for, which interest shall be calculated on the basis of a 360-day year comprised of twelve 30-day months. (4) Interest Payment Dates. The interest payment dates with respect to the Senior Notes shall be April 1 and October 1 in each year, commencing April 1, 2003, and the regular record dates for interest payable on any such interest payment date shall be March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding such interest payment date. (5) Office of Payment. Principal of (and premium, if any) and interest on the Senior Notes shall be payable at the Corporate Trust Office of the Trustee in New York, New York, and the Senior Notes may be surrendered for registration of transfer or exchange at such Corporate Trust Office, and notices and demands to or upon the Company in respect of the Senior Notes and the Indenture may be served at such Corporate Trust Office. (6) Paying Agent, etc. The Trustee shall initially act as paying agent, authenticating agent, transfer agent and security registrar with respect to the Senior Notes. (7) Guarantee. The Guarantor will guarantee the Company's payment obligations on the Senior Notes subject to and in accordance with Article Thirteen of the Indenture. The provisions of Section 3.8 of the Indenture shall be applicable to the Senior Notes. (8) Redemption. The Senior Notes shall be redeemable in whole or in part, at the Company's option, at any time or from time to time, at a redemption price equal to the greater of (1) 100% of the principal amount of such Senior Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as hereinafter defined) on such Senior Notes, discounted to the date fixed for redemption in accordance with Article Twelve of the Indenture (the "Redemption Date") on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 25 basis points, plus accrued interest on the principal amount being redeemed to the Redemption Date. "Treasury Rate" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Senior Notes to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Senior Notes. "Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company. "Comparable Treasury Price" means, with respect to any Redemption Date, (1) the arithmetic average of the bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day before such Redemption Date, as published in the daily statistical release (or any successor release) by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (2) if such release (or any successor release) is not available or does not contain such prices on such Business Day, the arithmetic average of the Reference Treasury Dealer Quotations for such Redemption Date. "Reference Treasury Dealer" means Goldman, Sachs & Co. or Merrill Lynch & Co. and their respective successors; provided, however, that if any such entity ceases to be a primary U. S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date, the arithmetic average, as determined by the Trustee, of the bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such 3 Reference Treasury Dealer by 5:00 p.m. on the third Business Day before such Redemption Date. "Remaining Scheduled Payments" means the remaining scheduled payments of the principal of the Senior Notes to be redeemed and interest thereon that would be due after the related Redemption Date but for such redemption; provided, however, that, if such Redemption Date is not an interest payment date, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such Redemption Date. (9) Change of Control Offer. (i) Upon the occurrence of a Change of Control Triggering Event, the Company shall be obligated to make an offer to purchase all of the then outstanding Senior Notes (a "Change of Control Offer"), and shall purchase, on a Business Day (the "Change of Control Purchase Date") not more than 70 nor less than 30 days following the date of the Change of Control Triggering Event, all of the then outstanding Senior Notes validly tendered pursuant to such Change of Control Offer, at a purchase price (the "Change of Control Purchase Price") equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the Change of Control Purchase Date. The Change of Control Offer is required to remain open for at least 20 Business Days and until the close of business on the Change of Control Purchase Date. (ii) Not later than the 30th day following the date of the Change of Control Triggering Event, the Company shall give to the Trustee and each Holder of the Senior Notes, in the manner provided in Section 11.4 of the Indenture, a notice (the "Change of Control Notice") stating: (A) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Company to repurchase such Holder's Senior Notes, or portion thereof equal to an integral multiple of $1,000, at the Change of Control Purchase Price; (B) any information regarding such Change of Control Triggering Event required to be furnished pursuant to Rule 14e-1 under the Securities Exchange Act of 1934 (the "Exchange Act") and any other securities laws and regulations thereunder; (C) the Change of Control Purchase Date, which shall be on a Business Day and no earlier than 30 days nor later than 70 days after the date of the Change of Control Triggering Event; (D) that any Senior Note, or portion thereof, not tendered or accepted for payment will continue to accrue interest; (E) that unless the Company defaults in depositing money with the paying agent in accordance with paragraph (v) of this Section (9), or payment is otherwise prevented, any Senior Note, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and 4 (F) the instructions a Holder must follow in order to have its Senior Notes repurchased in accordance with paragraph (iv) of this Section (9). (iii) The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer at the same purchase price, at the same times and otherwise in substantial compliance with the requirements applicable to a Change of Control Offer made by the Company and purchases all Senior Notes validly tendered and not withdrawn under such Change of Control Offer. (iv) Holders electing to have Senior Notes purchased will be required to surrender such Senior Notes to the Company at the address specified in the Change of Control Notice at least five Business Days prior to the Change of Control Purchase Date. Repurchases of Senior Notes in part may be elected only for portions of Senior Notes having a principal amount of $1,000 or an integral multiple thereof. Holders will be entitled to withdraw their election if the Company receives, not later than three Business Days prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the certificate number(s) and principal amount of the Senior Notes delivered for purchase by the Holder as to which his election is to be withdrawn and a statement that such Holder is withdrawing his election to have such Senior Notes purchased. Holders whose Senior Notes are purchased only in part will be issued new Senior Notes equal in principal amount to the unpurchased portion of the Senior Notes surrendered. (v) On the Change of Control Purchase Date, the Company shall (A) accept for payment Senior Notes or portions thereof tendered pursuant to a Change of Control Offer, (B) deposit with the paying agent money sufficient to pay the purchase price of all Senior Notes or portions thereof so tendered, and (C) deliver or cause to be delivered to the Trustee the Senior Notes so accepted. The paying agent shall promptly mail or deliver to Holders of the Senior Notes so tendered payment in an amount equal to the purchase price for the Senior Notes, and the Company will promptly execute and the Trustee will promptly authenticate and mail or make available for delivery to such Holders a new Senior Note equal in principal amount to any unpurchased portion of the Senior Note which any such Holder did not surrender for purchase. The Company shall announce the results of a Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date. (vi) The Company shall comply with Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable, in the event that a Change of Control Triggering Event occurs and the Company is required to purchase Senior Notes as described above. 5 (vii) For all purposes of this Section (9), the following terms shall have the respective meanings specified below (except as otherwise expressly provided or unless the context otherwise clearly requires): "Change of Control" means the occurrence of any of the following events: (a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the Company's total Voting Stock; (b) the Company is merged with or into or consolidated with another Person and, immediately after giving effect to the merger or consolidation, (A) less than 50% of the total voting power of the outstanding Voting Stock of the surviving or resulting Person is then "beneficially owned" (within the meaning of Rule 13d-3 under the Exchange Act) in the aggregate by (x) the Company's stockholders immediately prior to such merger or consolidation, or (y) if a record date has been set to determine the stockholders of the Company entitled to vote with respect to such merger or consolidation, the stockholders of the Company as of such record date and (B) any "person" or "group" (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act), has become the direct or indirect "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock of the surviving or resulting Person; (c) during any consecutive two-year period, individuals who at the beginning of such period constituted the Company's board of directors (together with any new directors whose election by such board of directors or whose nomination for election by the Company's stockholders was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Company's board of directors then in office; or (d) the liquidation or dissolution of the Company. "Change of Control Triggering Event" means the first occurrence of both a Change of Control and a related Rating Decline. "Investment Grade" means (i) with respect to Moody's, a rating of at least "Baa3" (or equivalent successor category); (ii) with respect to S&P, a rating of at least "BBB-" (or equivalent successor category); and (iii) with respect to another Rating Agency, a rating that is at least the equivalent of the category specified in clause (i) or (ii), as applicable, for the Rating Agency for which such Rating Agency has been substituted. "Moody's" means Moody's Investors Service, Inc. or any successor to the rating agency business thereof. "Rating Agency" means each of S&P and Moody's, or if S&P or Moody's or both shall not make a rating on the Senior Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors of the Company), which shall be substituted for S&P or Moody's, or both, as the case may be. 6 "Rating Decline" means with respect to each of the two Rating Agencies there has been either (i) a reduction in the rating of the Senior Notes by such Rating Agency to a rating that is not Investment Grade or (ii) a withdrawal of the rating of the Senior Notes by such Rating Agency; provided, however, that any such reduction or withdrawal by a Rating Agency (x) occurs not later than the date 30 days following the date of public notice of the occurrence of a Change of Control and (y) is due to such Change of Control. "S&P" means Standard & Poor's Services or any successor to the rating agency business thereof. "Voting Stock" means any class or classes of capital stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency). (10) No Sinking Fund. The Senior Notes shall not be subject to a sinking fund requirement. (11) Denominations. The Senior Notes shall be issuable in denominations of $1,000 and integral multiples thereof. (12) Defeasance. The Senior Notes shall be subject to defeasance as provided in Section 10.1(C) of the Indenture. (13) Depositary. The Senior Notes shall be issued initially wholly in the form of Global Securities, and The Depository Trust Company shall be the initial Depositary with respect thereto. 7 EX-12.1 5 h99923exv12w1.txt COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12.1 OCEAN ENERGY, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (AMOUNTS IN THOUSANDS EXCEPT RATIOS)
SIX MONTHS ENDED YEAR ENDED JUNE 30, DECEMBER 31, ------------ -------------- 2002 2001 ------------ -------------- Earnings (loss) before income taxes and cumulative effect of changes in accounting principles and extraordinary items................................... $ 125,363 $ 503,959 Fixed Charges: Interest expense........................ 29,104 62,707 Capitalized interest.................... 24,643 45,051 Assumed interest portion of rent expense............................... 4,144 1,721 ------------ -------------- Total fixed charges........................ 57,891 109,479 Pre-tax dividend requirements........... 2,955 5,909 ------------ -------------- Total fixed charges and preferred stock dividends............................... $ 60,846 $ 115,388 ============ ============== Earnings (loss) plus fixed charges excluding capitalized interest.......... $ 158,611 $ 568,387 ============ ============== Ratio of earnings to fixed charges......... 2.7 5.2 ============ ============== Ratio of earnings to fixed charges and preferred stock dividends............... 2.6 4.9 ============ ==============
"Earnings consist of income (loss) from continuing operations before income taxes, plus interest expense on all indebtedness and an assumed interest portion of rent expense. "Fixed charges" consist of interest (whether expensed or capitalized) and that portion of rentals considered to be representative of the interest factor. "Fixed charges and preferred stock dividends" represent fixed charges (as described above) and our preferred stock dividend requirement adjusted to a pre-tax basis. -----END PRIVACY-ENHANCED MESSAGE-----