Form 8-K ANADARKO PETROLEUM CORP For: Jun 04
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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): June 4, 2015
ANADARKO PETROLEUM CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State of incorporation or organization)
1-8968
(Commission File Number)
76-0146568
(IRS Employer Identification No.)
1201 Lake Robbins Drive
The Woodlands, Texas 77380-1046
(Address of principal executive offices including Zip Code)
Registrant’s telephone number, including area code: (832) 636-1000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. | Entry into a Material Definitive Agreement. |
On June 10, 2015, Anadarko Petroleum Corporation (the “Company”) completed its previously announced public offering and sale of 8,000,000 7.50% tangible equity units (the “Units”) at a public offering price of $50.00 per Unit, pursuant to a Terms Agreement, dated as of June 4, 2015 (including the Underwriting Agreement (Standard Provisions) incorporated therein, the “Terms Agreement”), among the Company, Western Gas Equity Partners, LP (“WGP”), Western Gas Equity Holdings, LLC and J.P. Morgan Securities LLC, as representative of the other underwriters named therein. Pursuant to the Terms Agreement, the Company has also granted the underwriters a 30-day option to purchase up to an additional 1,200,000 Units at the same price.
The sale of the Units was made pursuant to the Company’s Registration Statement on Form S-3, as amended (Registration No. 333-192219), including a prospectus supplement dated June 4, 2015 (the “Prospectus Supplement”) to the prospectus contained therein dated June 3, 2015, filed by the Company with the Securities and Exchange Commission, pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended.
Units
Each Unit is comprised of (i) a prepaid equity purchase contract issued by the Company (each, a “Purchase Contract”) pursuant to which the Company will deliver to the holder, not later than June 7, 2018 (subject to postponement in certain limited circumstances, the “mandatory settlement date”), unless earlier settled, a number of common units (the “WGP common units”) representing limited partner interests in WGP, based on the applicable market value of WGP common units at the settlement rate described below, subject to the Company’s right to elect to issue and deliver shares of the Company’s common stock (“APC Stock”) in lieu of such WGP common units, and (ii) a senior amortizing note issued by the Company (each, an “Amortizing Note”) with an initial principal amount of $10.9507, which will bear interest at the rate of 1.50% per annum, will have a final installment payment date of June 7, 2018 and will pay holders equal quarterly cash installments of $0.9375 per Amortizing Note (except for the September 7, 2015 installment payment, which will be $0.9063 per Amortizing Note), which in the aggregate will be equivalent to a 7.50% cash payment per year with respect to each $50 stated amount of Units.
The Company issued the Units under a purchase contract agreement (the “Purchase Contract Agreement”), dated as of June 10, 2015, between the Company and The Bank of New York Mellon Trust Company, N.A., as purchase contract agent, attorney-in-fact for holders of Purchase Contracts (as defined below) and as trustee under the Indenture (as defined below). The Company issued the Amortizing Notes under an indenture dated as of September 19, 2006, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity, the “Trustee”), as supplemented by that certain Third Supplemental Indenture (herein so called), dated as of June 10, 2015 (as supplemented, the “Indenture”). The Purchase Contract Agreement (including the forms of Unit and Purchase Contract) and the Third Supplemental Indenture (including the form of Amortizing Note) are filed as Exhibits 4.1 and 4.2, respectively, to this report and are incorporated herein by reference. The following description of the Units, the Purchase Contracts and the Amortizing Notes is a summary and is not meant to be a complete description of the Units, the Purchase Contracts and the Amortizing Notes.
Purchase Contracts
Unless settled earlier, each Purchase Contract will automatically settle on the mandatory settlement date and the Company will deliver a number of WGP common units, based on the applicable market value of WGP common units, subject to our right to elect to issue and deliver shares of APC Stock in lieu of such WGP common units. The “applicable market value” of WGP common units is the average of the daily VWAPs (as defined below) of WGP common units for the 20 consecutive trading days beginning on, and including, the 23rd scheduled trading day immediately preceding the mandatory settlement date. Unless earlier settled, each Purchase Contract will settle on the mandatory settlement date based on a “settlement rate” determined as follows (subject to adjustment and our right to settle in APC Stock):
| • | if the applicable market value of WGP common units is greater than $69.8422, the settlement rate will be 0.7159 WGP common units for each Purchase Contract (the “minimum settlement rate”); |
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| • | if the applicable market value of WGP common units is less than or equal to $69.8422 but greater than or equal to $58.20, the settlement rate will be a number of WGP common units for each Purchase Contract equal to $50, divided by the applicable market value of WGP common units; and |
| • | if the applicable market value of WGP common units is less than $58.20, the settlement rate will be 0.8591 WGP common units for each Purchase Contract (the “maximum settlement rate”). |
The “daily VWAPs” with respect to WGP common units means, on any date of determination, the per WGP common unit volume-weighted average price as displayed under the heading Bloomberg VWAP on Bloomberg page “WGP <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading on the relevant trading day until the scheduled close of trading on the relevant trading day (or if such volume weighted average price is unavailable, the market price of one WGP common unit on such trading day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company).
At any time prior to 5:00 p.m., New York City time, on the 33rd scheduled trading day immediately preceding the mandatory settlement date, a holder of a Purchase Contract may settle its Purchase Contract early, subject to satisfaction of certain conditions, and the Company will deliver 0.6443 WGP common units per Purchase Contract (subject to adjustment), which is approximately 90% of the minimum settlement rate, subject to the Company’s right to elect to issue and deliver shares of APC Stock in lieu of such WGP common units. In addition, if a “fundamental change” (as defined in the Prospectus Supplement) occurs and the holder of a Purchase Contract elects to settle such Purchase Contract early in connection with such fundamental change, such holder will receive a number of WGP common units based on the fundamental change early settlement rate, as described in the Prospectus Supplement, subject to the Company’s right to elect to issue and deliver APC Stock in lieu of such WGP common units. Except for cash in lieu of fractional WGP common units or fractional shares of APC Stock, as the case may be, the Purchase Contract holders will not receive any cash distributions under the Purchase Contracts.
Upon early settlement of a Purchase Contract at the holder’s election, the corresponding Amortizing Note will remain outstanding and beneficially owned by or registered in the name of, as the case may be, the holder who elected to settle the related Purchase Contract early.
Amortizing Notes
Each Amortizing Note will have an initial principal amount of $10.9507, will bear interest at an annual rate of 1.50% and will have a final installment payment date of June 7, 2018. On each March 7, June 7, September 7 and December 7, commencing on September 7, 2015, the Company will pay equal quarterly cash installments of $0.9375 per Amortizing Note (except for the September 7, 2015 installment payment, which will be $0.9063 per Amortizing Note), which will constitute a payment of interest and a partial repayment of principal, and which cash payment in the aggregate per year will be equivalent to 7.50% per year with respect to each $50 stated amount of Units. The Amortizing Notes will be senior unsecured obligations of the Company and will rank:
| • | senior in right of payment to any of the Company’s indebtedness that is expressly subordinated in right of payment to the Amortizing Notes; |
| • | equal in right of payment to any of the Company’s indebtedness that is not so subordinated; |
| • | effectively junior in right of payment to any of the Company’s secured indebtedness to the extent of the value of the assets securing such indebtedness; and |
| • | structurally junior to all indebtedness and other liabilities (including trade payables) of the Company’s subsidiaries. |
The Indenture contains customary terms and covenants, including that upon certain events of default occurring and continuing, either the trustee or the holders of not less than 25% in aggregate principal amount of the Amortizing Notes then outstanding may declare the unpaid principal of the Amortizing Notes and any accrued and unpaid interest thereon immediately due and payable. In the case of certain events of bankruptcy, insolvency or reorganization relating to the Company, the principal amount of the Amortizing Notes together with any accrued and unpaid interest thereon will automatically become and be immediately due and payable.
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General
Each Unit may be separated into its constituent Purchase Contract and Amortizing Note after the initial issuance date of the Units, and the separate components may be combined to create a Unit, in each case in accordance with the terms of the Purchase Contract Agreement.
The Company has been approved to list the Units on the New York Stock Exchange under the symbol “AEUA,” subject to notice of the closing of this offering. The Company expects trading on the New York Stock Exchange to begin within 30 calendar days. The Company does not intend to apply to list the separate Purchase Contracts or the separate Amortizing Notes on any securities exchange or automated inter-dealer quotation system.
The Company intends to use the net proceeds from this offering for general corporate purposes.
R. A. Walker, the Chief Executive Officer and a director of the Company, purchased approximately $125,000 stated amount of Units in connection with this offering at the public offering price.
The foregoing descriptions of the Terms Agreement, the Purchase Contract Agreement, the Indenture and the related instruments and transactions associated therewith do not purport to complete and are subject to, and qualified in their entirety by, the full text of the agreements and instruments, each of which is attached hereto as an Exhibit.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registration. |
The description contained under Item 1.01 above is hereby incorporated by reference in its entirety into this Item 2.03.
| Item 9.01. | Financial Statements and Exhibits |
| (d) | Exhibits |
| Exhibit |
Description | |
| 1.1 | Terms Agreement (including the Underwriting Agreement (Standard Provisions) incorporated therein), dated June 4, 2015, among Anadarko Petroleum Corporation, Western Gas Equity Partners, LP, Western Gas Equity Holdings, LLC and J.P. Morgan Securities LLC, as representative of the other underwriters named therein. | |
| 4.1 | Purchase Contract Agreement, dated June 10, 2015, between Anadarko Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A. | |
| 4.2 | Third Supplemental Indenture, dated June 10, 2015, between Anadarko Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A. | |
| 4.3 | Form of Unit (included in Exhibit 4.1). | |
| 4.4 | Form of Purchase Contract (included in Exhibit 4.1). | |
| 4.5 | Form of Amortizing Note (included in Exhibit 4.2). | |
| 5.1 | Opinion of Vinson & Elkins L.L.P. | |
| 8.1 | Opinion of Vinson & Elkins L.L.P. relating to tax matters. | |
| 23.1 | Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1). | |
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SIGNATURE
Pursuant to the requirements 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.
| ANADARKO PETROLEUM CORPORATION | ||||||
| Date: June 10, 2015 | By: | /s/ Robert K. Reeves | ||||
| Name: | Robert K. Reeves | |||||
| Title: | Executive Vice President, General Counsel and Chief Administrative Officer | |||||
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EXHIBIT INDEX
| Exhibit |
Description | |
| 1.1 | Terms Agreement (including the Underwriting Agreement (Standard Provisions) incorporated therein), dated June 4, 2015, among Anadarko Petroleum Corporation, Western Gas Equity Partners, LP, Western Gas Equity Holdings, LLC and J.P. Morgan Securities LLC, as representative of the other underwriters named therein. | |
| 4.1 | Purchase Contract Agreement, dated June 10, 2015, between Anadarko Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A. | |
| 4.2 | Third Supplemental Indenture, dated June 10, 2015, between Anadarko Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A. | |
| 4.3 | Form of Unit (included in Exhibit 4.1). | |
| 4.4 | Form of Purchase Contract (included in Exhibit 4.1). | |
| 4.5 | Form of Amortizing Note (included in Exhibit 4.2). | |
| 5.1 | Opinion of Vinson & Elkins L.L.P. | |
| 8.1 | Opinion of Vinson & Elkins L.L.P. relating to tax matters. | |
| 23.1 | Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1). | |
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Exhibit 1.1
ANADARKO PETROLEUM CORPORATION
(a Delaware corporation)
8,000,000 7.50% Tangible Equity Units
UNDERWRITING AGREEMENT
(Standard Provisions)
June 4, 2015
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
as the Representative of the several Underwriters named in
the respective Terms Agreements hereinafter described.
Dear Sirs:
Anadarko Petroleum Corporation, a Delaware corporation (the “Company”), proposes to issue and sell an aggregate of 8,000,000 7.50% tangible equity units (the “Firm Securities”) and, at your election, up to 1,200,000 additional 7.50% tangible equity units (the “Additional Securities”) of the Company. The Firm Securities and the Additional Securities are herein collectively called the “Securities.” Each Security has a stated amount of $50.00 (the “Stated Amount”) and consists of (1) a prepaid equity purchase contract (each, a “Purchase Contract”) under which the holder has purchased and the Company will agree to deliver on June 7, 2018 (subject to postponement in certain limited circumstances), subject to any early settlement of such Purchase Contract pursuant to the provisions thereof and of the Purchase Contract Agreement (defined below), a number of common units (the “Partnership Common Units”) representing limited partner interests in the Company’s subsidiary, Western Gas Equity Partners, LP, a Delaware limited partnership (the “Partnership”), subject to the Company’s right to elect to deliver shares of common stock of the Company (“APC Common Stock”) in lieu of such Partnership Common Units, as determined pursuant to the terms of the Purchase Contract and the Purchase Contract Agreement (defined below) and (2) a senior amortizing note with a final installment payment date of June 7, 2018 (each, an “Amortizing Note”) issued by the Company, which will have an initial principal amount of $10.9507 and will pay equal quarterly installments of $0.9375 (other than in the case of the installment payment due on September 7, 2015), which in the aggregate will be equivalent to a 7.50% cash payment per year with respect to the Stated Amount per Security. All references herein to the Securities include references to the Purchase Contracts and the Amortizing Notes comprising the Securities, unless the context otherwise requires.
The Amortizing Notes will be issued pursuant to an indenture, dated as of September 19, 2006, between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly, The Bank of New York Trust Company, N.A.), as trustee, as supplemented by that certain Third Supplemental Indenture to be dated June 10, 2015 (as so supplemented, the “Indenture”). The Securities and the Purchase Contracts will be issued pursuant to the Purchase Contract Agreement (the “Purchase Contract Agreement”), to be dated June 10, 2015, among the Company, The Bank of New York Mellon Trust Company, N.A., as purchase contract agent (the “Purchase Contract Agent”) and as attorney-in-fact for the holders of the Purchase Contracts from time to time, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) under the Indenture. The Purchase Contract Agreement and Indenture are referred to herein collectively as the “Units Documents.”
The provisions included herein (the “Standard Provisions”) shall be incorporated by reference into each Terms Agreement. The term “you” or “your” as used herein, unless the context otherwise requires, shall mean such of the parties to whom these Standard Provisions are addressed as are named in the applicable Terms Agreement.
Each offering of Securities will be made through you or through an underwriting syndicate managed by you. Whenever the Company determines to make an offering of Securities, it will enter into an agreement substantially in the form of Exhibit A hereto (the “Terms Agreement”) providing for the sale of such Securities to, and the purchase and offering thereof by, you and such other underwriters, if any, selected by you as have authorized you to enter into such Terms Agreement on their behalf (the “Underwriters,” which term shall include
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you whether acting alone in the sale of Securities or as members of an underwriting syndicate). J.P. Morgan Securities LLC shall act as representative of the Underwriters, if any, specified in a Terms Agreement and is hereinafter referred to as the “Representative.” The Terms Agreement relating to each offering of Securities shall specify the names of the Underwriters participating in such offering (subject to substitution as provided in Section 11 hereof) and the number of Firm Securities that each Underwriter severally agrees to purchase, the names of you and such other Underwriters, if any, acting as co-managers in connection with such offering, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price of the Securities and the time and place of delivery and payment. In addition, the Terms Agreement shall specify the maximum number of any Additional Securities that the Company proposes to issue and sell to the Underwriters if and to the extent that you shall have determined to exercise, on behalf of the several Underwriters, the right to purchase such Additional Securities. The Terms Agreement may take the form of an exchange of any standard form of written telecommunication between you and the Company. Each offering of Securities will be governed by these Standard Provisions, as supplemented by the applicable Terms Agreement, and these Standard Provisions and such Terms Agreement shall inure to the benefit of and be binding upon each Underwriter participating in the offering of Securities.
All references in these Standard Provisions to financial statements and schedules and other information that is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, Disclosure Package, Prospectus, preliminary prospectus, Partnership Registration Statement, Partnership Prospectus or Partnership preliminary prospectus shall be deemed to mean and include all such financial statements and schedules and other information that are incorporated by reference in the Registration Statement, Disclosure Package, Prospectus, preliminary prospectus, Partnership Registration Statement, Partnership Prospectus or Partnership preliminary prospectus, as the case may be, prior to the execution of the applicable Terms Agreement; and all references in these Standard Provisions to amendments or supplements to the Registration Statement, Prospectus, Disclosure Package, preliminary prospectus, the Partnership Registration Statement, Partnership Prospectus or Partnership preliminary prospectus shall be deemed to include the filing (as opposed to furnishing) of any document under the Exchange Act which is incorporated by reference in the Registration Statement, Prospectus, Disclosure Package, preliminary prospectus, the Partnership Registration Statement, Partnership Prospectus or Partnership preliminary prospectus, as the case may be, after the execution of the applicable Terms Agreement.
For purposes of these Standard Provisions:
“430B Information” means information included in a prospectus then deemed to be a part of the Registration Statement or Partnership Registration Statement, as the case may be, pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement or Partnership Registration Statement, as the case may be, pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of the Registration Statement or Partnership Registration Statement, as the case may be, pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means the time and date so stated in the Terms Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Date” of the Registration Statement relating to the Securities and of the Partnership Registration Statement relating to the Deliverable Partnership Common Units means the time of the first contract of sale for the Securities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
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“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in a schedule to the Terms Agreement.
“General Partner” means Western Gas Equity Holdings, LLC, a Delaware limited liability company and the Partnership’s general partner.
“Issuer Free Writing Prospectus” means, (i) with respect to the Company, any “issuer free writing prospectus,” as defined in Rule 433, relating to the Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) and (ii) with respect to the Partnership, any “issuer free writing prospectus,” as defined in Rule 433, relating to the Deliverable Partnership Common Units in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Partnership’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Partnership Prospectus” means the Partnership Statutory Prospectus that discloses 430B Information, 430C Information and other final terms of the Deliverable Partnership Common Units and otherwise satisfies Section 10(a) of the Act.
“Partnership Registration Statement” at any particular time means such registration statement in the form then filed by the Partnership with the Commission relating to the Partnership Common Units, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. “Partnership Registration Statement” without reference to a time means the Partnership Registration Statement as of the Effective Date. For purposes of this definition, 430B Information shall be considered to be included in the Partnership Registration Statement as of the time specified in Rule 430B.
“Partnership Statutory Prospectus” with reference to any particular time means the prospectus relating to the Partnership Common Units that is included in the Partnership Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information and 430C Information shall be considered to be included in the Partnership Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“Prospectus” means the Statutory Prospectus that discloses the public offering price, other 430B Information, 430C Information and other final terms of the Securities and otherwise satisfies Section 10(a) of the Act.
“Registration Statement” at any particular time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. “Registration Statement” without reference to a time means the Registration Statement as of the Effective Date. For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule 430B.
“Rules and Regulations” means the rules and regulations of the Commission.
“Statutory Prospectus” with reference to any particular time means the prospectus relating to the Securities that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information and 430C Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
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“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Western Gas Parties” means, collectively, the Partnership and the General Partner.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
Section 1. Representations and Warranties of the Company. The Company represents and warrants to you, and to each Underwriter named in a Terms Agreement as of the date thereof as follows:
(a) The Company has filed with the Commission a registration statement on Form S-3 (No. 333-192219), including a related prospectus or prospectuses, covering the registration of the Securities under the Act, which has become effective.
(b) The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 of the Act) filed within three years of the date of the applicable Terms Agreement, and the Company is a “well-known seasoned issuer” (as defined in Rule 405 of the Act). No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form. If at any time when any Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representative, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable, and (iv) promptly notify the Representative of such effectiveness. The Company will take all other action reasonably necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be. The Company has paid or shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(c) (i) At the time of filing the Registration Statement and (ii) at the date of the Terms Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(d) (i) (A) At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C) on the Effective Date relating to the Securities and (D) on the Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at the time of filing the Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to (i) statements in or omissions from any such document made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative, if any, specifically for use therein, it being understood and agreed that the only such information is that described as such in the Terms Agreement or (ii) that part of the Registration Statement that will constitute the Statement of Eligibility and Qualification under the Trust Indenture Act (Form T-1) of the Trustee under the Indenture (the “Form T-1”).
(e) As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus identified in a schedule to the Terms Agreement, and any other documents listed or disclosures stated in a schedule to the Terms Agreement to be included in the
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Disclosure Package, all considered together (collectively, the “Disclosure Package”), nor (ii) any electronic road show or other written communications reviewed and consented to by the Representative and listed on Schedule II hereto (each a, “Company Additional Written Communication”) or any individual Limited Use Issuer Free Writing Prospectus, when considered together with the Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentences do not apply to statements in or omissions from any Statutory Prospectus, any Issuer Free Writing Prospectus or any Company Additional Written Communication in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information is that described as such in the Terms Agreement.
(f) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representative as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) the Company has promptly notified or will promptly notify the Representative and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The preceding sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information is that described as such in the Terms Agreement.
(g) The accountants who certified the financial statements of the Company included or incorporated in the Registration Statement, the Prospectus and the Disclosure Package are independent public accountants as required by the Act, the Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(h) The consolidated financial statements of the Company together with related schedules and notes, included or incorporated in the Registration Statement, the Prospectus and the Disclosure Package present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and the changes in their financial position for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles consistently applied during the period, except as stated therein.
If applicable, the pro forma financial information set forth or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package is, in all material respects, fairly presented and prepared on a basis consistent with the historical financial statements of the Company and its subsidiaries, except to the extent stated therein, and gives effect to assumptions used in the preparation thereof which have been made on a reasonable basis and in good faith.
(i) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company and its subsidiaries is made known to the chief executive officer and chief financial officer of the Company by others within the Company or any subsidiary, and such disclosure controls and procedures are reasonably effective to perform the functions for which they were established subject to the limitations of any such control system. The Company and each of its subsidiaries maintain a system of internal control over financial reporting (as such term is defined in Rule 13a-15 under the Exchange Act) sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (C) access to
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assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company’s auditors and the audit committee of the board of directors of the Company have been advised of: (A) any significant deficiencies in the design or operation of internal control over financial reporting which could adversely affect the Company’s ability to record, process, summarize, and report financial data; and (B) any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal control over financial reporting; any material weaknesses in internal control over financial reporting have been identified for the Company’s auditors; and since the date of the most recent evaluation of the Company’s internal control over financial reporting, there have been no significant changes in internal control over financial reporting or in other factors that could significantly affect internal control over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses. The Company made available to the Underwriters or their counsel for review true and complete copies of all minutes or draft minutes of meetings, or resolutions adopted by written consent, of the board of directors of the Company and each significant subsidiary of the Company within the meaning of Regulation S-X (each “Significant Subsidiary”) and each committee of each such board in the past three years, and all agendas for each such meeting for which minutes or draft minutes do not exist.
(j) Except as described in the Disclosure Package as of the Applicable Time, since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the financial condition, results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, that is material and adverse (a “Material Adverse Change”).
(k) Except as described in the Prospectus and the Disclosure Package as of the Applicable Time, since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package, no litigation or governmental proceeding has been instituted or, to the knowledge of the Company, threatened against the Company or any subsidiary which would reasonably be expected to have any material adverse effect on the financial condition, results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
(l) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with the corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package; and the Company is duly qualified or licensed to do business as a foreign corporation in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(m) Each Significant Subsidiary is a duly incorporated or formed and validly existing corporation, partnership or limited liability company, as applicable, in good standing under the laws of its jurisdiction of incorporation or formation with full corporate, partnership or limited liability company power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package. Each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect. The issued and outstanding common stock or other equity interests of each of the Significant Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and, except as disclosed in the Prospectus and the Disclosure Package, are owned by the Company free and clear of any mortgages, liens or similar encumbrances.
(n) Neither the Company nor any Significant Subsidiary is (i) in violation of its certificate of incorporation or bylaws or similar organizational documents, (ii) in default in the performance or observance of any obligation in any indenture, mortgage, evidence of indebtedness or similar agreement or instrument to which it is a party or by which it or any of its properties may be bound or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not have a Material Adverse Effect. The execution and delivery of the applicable Terms Agreement, incorporating these Standard Provisions, and the Units
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Documents, and the consummation of the transactions contemplated herein and therein and the incurrence of the obligations herein and therein set forth (including, without limitation, the delivery and sale of any Partnership Common Units pursuant to the Purchase Contract Agreement and the Purchase Contracts (the “Deliverable Partnership Common Units”) and the issuance, sale and delivery of any shares of APC Common Stock pursuant to the Purchase Contract Agreement and the Purchase Contracts (the “Issuable APC Common Stock”)), have been duly authorized by all necessary corporate action and do not and will not, conflict with, or constitute or result in a breach of or default under, the certificate of incorporation or bylaws of the Company or, except for any such conflict, breach or default which would not have a Material Adverse Effect, any law, order, rule, regulation or court decree or any bond, debenture, note or other evidence of indebtedness or any material contract, lease, license, indenture, mortgage, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or any of their respective properties may be bound; and the Company has full corporate power and authority to issue and sell the Securities as contemplated by the applicable Terms Agreement, including these Standard Provisions, and enter into and perform the Units Documents.
(o) No consent, approval, authorization, order or qualification or registration of or with any court or governmental agency or body is required for the consummation of the transactions contemplated herein or in the Units Documents, except for (i) the registration of the offer and sale of the Securities under the Act and such consents, approvals, authorizations, orders, qualifications or registrations as may be required under the Blue Sky or securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters; (ii) the qualification of the Indenture under the Trust Indenture Act; and (iii) such consents, approvals, authorizations, orders, qualifications or registrations, the failure of which to obtain or make would not individually or in the aggregate, have a Material Adverse Effect.
(p) The Company and each Significant Subsidiary possess such valid franchises, certificates of convenience and necessity, easements, rights of way, operating rights, licenses, permits, consents, authorizations and orders of governmental political subdivisions or regulatory authorities as, in the opinion of the Company, are necessary to carry on the respective businesses of each as described in the Prospectus and the Disclosure Package, except where the failure to possess such would not have a Material Adverse Effect.
(q) Except as disclosed in the Disclosure Package and the Prospectus and except for matters that would not, individually or in the aggregate, have a Material Adverse Effect: (i) the Company and its subsidiaries and their respective properties and operations are and, during the relevant time periods specified in all applicable statutes of limitations, have been in compliance with all applicable federal, state, local and foreign laws, rules, regulations, ordinances, codes, orders, and other legally enforceable requirements relating to the prevention of pollution, the preservation of environmental quality, the protection of natural resources, or the remediation of environmental contamination (collectively, “Environmental Laws”); (ii) the Company and its subsidiaries and their respective properties and operations are not subject to any proceeding, lawsuit, or other legal action or, to the Company’s knowledge, any investigation or inquiry, by or before any governmental authority pursuant to any Environmental Law; (iii) the Company and its subsidiaries and their respective properties and operations are not subject to any liability (including any obligation to perform any investigatory, corrective or remedial action that has been asserted) pursuant to Environmental Laws in connection with any release into the environment of, or any exposure of any person or property to, any pollutant, contaminant, solid or hazardous waste, hazardous or toxic substance, or any other material regulated under Environmental Laws.
(r) Except as disclosed in the Disclosure Package and the Prospectus, the Company and its subsidiaries have (i) generally satisfactory title to their oil and gas properties, title investigations having been carried out by the Company in accordance with the practice in the oil and gas industries in the areas in which the Company operates, (ii) good and marketable title to all other real property owned by them to the extent necessary to carry on their business and (iii) good and marketable title to all personal property owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Disclosure Package and the Prospectus, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them.
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(s) (i) The oil and natural gas reserve estimates of the Company and its subsidiaries, as of December 31, 2012, 2013 and 2014 contained in the Disclosure Package and the Prospectus are derived from reports by the Company and reviewed by Miller and Lents, Ltd., as set forth and to the extent indicated therein, and (ii) such estimates reasonably reflect the oil and natural gas reserves of the Company and its subsidiaries, as applicable, at the dates indicated therein and are in accordance, in all material respects, with Commission guidelines applied on a consistent basis throughout the periods involved.
(t) Miller and Lents, Ltd. has represented to the Company that it is, and the Company believes it to be, an independent petroleum engineer with respect to the Company and its subsidiaries and for the periods set forth in the Disclosure Package and the Prospectus.
(u) The applicable Terms Agreement, incorporating these Standard Provisions, has been duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly authorized by the Company and (assuming due authorization, execution and delivery thereof by the Trustee) when executed and delivered by the Company will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to creditors’ rights generally and general principles of equity whether enforcement is sought at law or in equity, and the Indenture has been qualified under the Trust Indenture Act.
(w) The Purchase Contract Agreement has been duly authorized by the Company and (assuming due authorization, execution and delivery thereof by the Purchase Contract Agent and the Trustee) when executed and delivered by the Company will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws nor or hereafter in effect relating to creditors’ rights generally and general principles of equity whether enforcement is sought at law or in equity.
(x) The Securities have been duly authorized for issuance and sale pursuant to the Terms Agreement and, when issued, authenticated and delivered pursuant to the provisions of the Purchase Contract Agreement against payment of the consideration therefor in accordance with the Terms Agreement, the Securities will be valid and binding obligations of the Company entitled to the benefits of the Purchase Contract Agreement and will be enforceable against the Company 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; and the Securities and the Purchase Contract Agreement conform or will conform at the time of their issuance or execution, as the case may be, in all material respects to all statements relating thereto contained in the Prospectus and the Disclosure Package.
(y) The Amortizing Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of the Indenture against payment of the consideration therefor in accordance with the Terms Agreement, the Amortizing Notes will be valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, 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; and the Amortizing Notes and the Indenture conform or will conform at the time of their issuance or execution, as the case may be, in all material respects to all statements relating thereto contained in the Prospectus and the Disclosure Package.
(z) The Purchase Contracts have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of the Purchase Contract Agreement against payment of the consideration therefor in accordance with the Terms Agreement, the Purchase Contracts will be valid and binding obligations of the Company entitled to the benefits of the Purchase Contract Agreement and will be enforceable against the Company 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; and the Purchase Contracts conform or will conform at the time of their issuance or execution, as the case may be, in all material respects to all statements relating thereto contained in the Prospectus and the Disclosure Package.
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(aa) Any Partnership Common Units delivered in accordance with the provisions of the Purchase Contracts and the Purchase Contract Agreement will be validly issued, fully paid and nonassessable, approved for listing on The New York Stock Exchange (the “NYSE”), and not issued in violation of any preemptive or similar right and will conform in all material respects as to legal matters to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(bb) The maximum number of shares of Issuable APC Common Stock (calculated assuming settlement of all Purchase Contracts at the “share cap,” as such term is defined in the Disclosure Package, and assuming that the Company elects to issue and deliver shares of Issuable APC Common Stock in lieu of Deliverable Partnership Common Units for all such Purchase Contracts) (the “Maximum Number of Issuable APC Shares”) have been duly authorized and, prior to Closing will be reserved for issuance by the Company and, any Issuable APC Common Stock issued and delivered in accordance with the provisions of the Purchase Contracts and the Purchase Contract Agreement will be validly issued, fully paid and nonassessable and not issued in violation of any preemptive or similar right and will conform in all material respects as to legal matters to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(cc) The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and will not contain any 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, in light of the circumstances under which they were made, not misleading.
(dd) Neither the Company nor any of its subsidiaries is, and at no time during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of the Securities will any of them be, and, after giving effect to the offering and sale of the Securities and the application of the proceeds therefrom, none of them will be, an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(ee) The Company has an authorized capitalization as set forth in the Disclosure Package and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(ff) No litigation or governmental proceeding has been instituted or, to the Company’s knowledge, threatened, against the Company or any subsidiary which would reasonably be expected to have a material adverse effect on the Company’s ability to perform its obligations under and consummate the transactions contemplated by the applicable Terms Agreement (incorporating these Standard Provisions), the Indenture and the Securities.
(gg) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable financial record-keeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act”), the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the applicable rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
(hh) Neither the Company nor, to the Company’s knowledge, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is currently the target or subject to any U.S.
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sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”) or any similar sanctions imposed by any other body, governmental or other, to which the Company or any of its subsidiaries is subject (collectively, “other economic sanctions”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or other economic sanctions.
(ii) Neither the Company nor any of its subsidiaries nor any director, officer or employee: (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the OECD Convention on Bribery of Foreign Public Officials in International Business Transactions (“OECD Convention”), the Foreign Corrupt Practice Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or any similar law or regulation to which the Company, any of its subsidiaries, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is subject. The Company, its subsidiaries and their affiliates have each conducted their businesses in compliance with the FCPA and any applicable similar law or regulation and have institutes and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(jj) Except for matters that would not individually or in the aggregate have a Material Adverse Effect, (i) none of the Company or its subsidiaries has any liability for any prohibited transaction or any complete or partial withdrawal liability with respect to any pension, profit sharing or other plan that is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), to which the Company or any of its subsidiaries makes or ever has made a contribution and in which any employee of the Company or of any of its subsidiaries is or has ever been a participant and (ii) with respect to such plans, the Company and each subsidiary is in compliance with all applicable provisions of ERISA (including the funding provisions thereof).
Section 2. Representations and Warranties of the Western Gas Parties. Each of the Western Gas Parties, jointly and severally, represents and warrants to you, and to each Underwriter named in a Terms Agreement as of the date thereof, the representations and warranties set forth on Annex A hereto, which Annex A is incorporated by reference into the Terms Agreement (including these Standard Provisions) and made a part thereof.
Section 3. Purchase and Sale. The several commitments of the Underwriters to purchase, and the obligation of the Company to sell, Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company and the Western Gas Parties herein contained and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Firm Securities to be purchased by the Underwriters shall be made at such time and place and on such date as specified in the applicable Terms Agreement (unless postponed in accordance with the provisions of Section 11 hereof) (each such time and date being referred to herein as a “Closing Date”). Payment shall be made to the Company in Federal or other funds immediately available in New York City or by such other means as may be specified in the Terms Agreement against delivery to you for the respective accounts of the Underwriters of the Firm Securities to be purchased by them.
Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to 1,200,000 Additional Securities at the same purchase price per Security as the Underwriters shall pay for the Firm Securities. The option hereby granted may be exercised in whole or in part, at any time from time to time (subject to the immediately succeeding paragraph) upon notice by the Representative to the Company setting forth the number of Additional Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Additional Securities. Additional Securities may be purchased solely for the purpose of covering over-allotments made in connection with the offering of the Firm Securities. If any Additional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Additional
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Securities (subject to such adjustments to eliminate fractions of Securities as you may determine) that bears the same proportion to the total number of Additional Securities to be purchased as the number of Firm Securities set forth opposite its name in the applicable Terms Agreement bears to the total number of Firm Securities.
Payment of the purchase price for, and delivery of, any Additional Securities to be purchased by the Underwriters shall be made at such time (which may be the same as the Closing Date but shall in no event be earlier than the Closing Date nor later than ten business days after the giving of the notice hereinafter referred to) and place as shall be designated in a written notice from you to the Company of your determination, on behalf of the Underwriters, to purchase the number, specified in such notice, of Additional Securities, or at such other time as shall be designated in writing by the Underwriters. The time and date of such payment are hereinafter referred to as the “Option Closing Date.” The notice of the determination to exercise the option to purchase Additional Securities and of the Option Closing Date may be given at any time within 30 days after the date of the Terms Agreement.
Certificates evidencing the Firm Securities and Additional Securities shall be in definitive, global form and registered in the name of Cede & Co., as nominee for The Depository Trust Company, unless you shall request otherwise in writing not less than two full business days prior to the Closing Date or the Option Closing Date, as the case may be. The certificates evidencing the Firm Securities and Additional Securities shall be delivered to you at the Closing Date or the Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid, against payment of the purchase price therefor.
Section 4. Covenants of the Company. The Company covenants with you, and with each Underwriter participating in the applicable offering of Securities, as follows with respect to such offering of Securities:
(a) As soon as practicable, following the execution of the applicable Terms Agreement, the Company will prepare the Prospectus setting forth the number of the Securities covered thereby and their terms, the names of the Underwriters participating in the offering and the number of the Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price of such Securities, if applicable, the selling concession and reallowance applicable to such Securities, if any, any Additional Securities information and such other information as you and the Company deem appropriate in connection with the offering of the Securities. The Company will transmit copies of the Prospectus to the Commission in compliance with Rule 424 under the Act and will furnish to the Underwriters named therein as many copies of the Prospectus and the Disclosure Package as you shall reasonably request for the purposes contemplated by the Act or the Rules and Regulations.
(b) If at any time when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Act) is required by the Act to be delivered in connection with sales of such Securities any event shall occur or condition exist as a result of which it is necessary to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in the light of circumstances existing at the time it is delivered to a purchaser or if it shall be necessary to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Act or the Rules and Regulations, the Company will, as soon as practicable, prepare and file (if required) with the Commission such amendment or supplement, whether by filing documents pursuant to the Exchange Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements.
(c) If the Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus or the Partnership Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Disclosure Package conflicts with the information contained in the Registration Statement or the Partnership Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, the Company will prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Disclosure Package so that the statements in the
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Disclosure Package as so amended or supplemented will not contain any statement of untrue material fact or omit to state a material fact necessary in order to make the statements not misleading, in the light of the circumstances when delivered to a prospective purchaser, or so that the Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement or the Partnership Registration Statement, or so that the Disclosure Package, as amended or supplemented, will comply with applicable law.
(d) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 18 months after the date of the Terms Agreement relating to such Securities, earnings statements of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158 under the Act).
(e) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required by the Act to be delivered in connection with sales of such Securities, will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the Disclosure Package, whether pursuant to the Act or otherwise and will furnish you with copies of any such amendment or supplement or other documents proposed to be filed in a reasonable time for review by the Underwriters in advance of filing.
(f) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required by the Act to be delivered by you in connection with sales of Securities, will notify you, as soon as practicable, and confirm the notice in writing, of: (i) the effectiveness of any amendment to the Registration Statement; (ii) the mailing or delivery to the Commission for filing of any supplement to the Prospectus or the Disclosure Package, or any document to be filed pursuant to the Exchange Act; (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Disclosure Package; (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the Disclosure Package or for additional information; (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the threat or initiation of any proceedings for that purpose or pursuant to Section 8A of the Act; and (vi) the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act. The Company will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(g) The Company will deliver to you, as soon as practicable, as many conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including, except to the extent available on EDGAR, exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus and the Disclosure Package pursuant to Item 12 of Form S-3 under the Act) as you may reasonably request and will also deliver to you, upon your request, a conformed copy of the Registration Statement and each amendment thereto for each of the Underwriters.
(h) The Company will cooperate with you to qualify the Securities for offering and sale under the applicable Blue Sky or securities laws of such states and other jurisdictions of the United States as you may designate, and will cooperate in maintaining such qualifications in effect for as long as may be required for the distribution of such Securities except that the Company shall not be obligated to file any general consent to service or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified. In each jurisdiction in which such Securities or the sale thereof shall have been qualified as above provided, the Company will cooperate with you to make and file such statements and reports in each year as may be required by the laws of such jurisdiction. The Company will cooperate in the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as you reasonably request.
(i) The Company will use its reasonable best efforts to cause all Deliverable Partnership Common Units delivered upon settlement of the Purchase Contracts to have been approved for listing on the NYSE.
(j) The Company will reserve and keep available at all times, free of preemptive rights, a number of shares of Issuable APC Common Stock equal to the Maximum Number of Issuable APC Shares.
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(k) The Company will use its reasonable best efforts to cause the Securities to be listed and admitted for trading on the NYSE within 30 days of the Closing Date.
(l) The Company will not, without your prior written consent, offer, sell, contract to sell or otherwise dispose of any securities designated in such Terms Agreement during the lock-up period specified in the applicable Terms Agreement, other than: (i) the Securities to be sold hereunder; (ii) any Partnership Common Units deliverable upon settlement of the Purchase Contracts or upon exchange of any other existing securities convertible into Partnership Common Units or upon exercise of any existing options to purchase Partnership Common Units; (iii) options or Partnership Common Units sold or issued pursuant to any employee benefit plan or arrangement of the Company or any of its subsidiaries existing on the date of the applicable Terms Agreement; (iv) Partnership Common Units deliverable in connection with any acquisition; and (v) the Partnership Common Units to be sold by the Company’s wholly owned subsidiary in the concurrent secondary offering.
Section 5. Covenants of the Western Gas Parties. The Western Gas Parties, jointly and severally, covenant with you, and with each Underwriter participating in the applicable offering of Securities, as follows with respect to such offering of Securities:
(a) As soon as practicable, following the execution of the applicable Terms Agreement, the Western Gas Parties will prepare the Partnership Prospectus setting forth the number of Deliverable Partnership Common Units covered thereby and their terms and such other information as you and the Western Gas Parties deem appropriate. The Western Gas Parties will transmit copies of the Partnership Prospectus to the Commission in compliance with Rule 424 under the Act and will furnish to the Underwriters named therein as many copies of the Partnership Prospectus as you shall reasonably request for the purposes contemplated by the Act or the Rules and Regulations.
(b) If at any time when the Partnership Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Act) is required by the Act to be delivered in connection with sales of Securities, any event shall occur or condition exist as a result of which it is necessary to further amend or supplement the Partnership Prospectus in order that the Partnership Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in the light of circumstances existing at the time it is delivered to a purchaser or if it shall be necessary at any time to amend or supplement the Partnership Registration Statement or the Partnership Prospectus in order to comply with the requirements of the Act or the Rules and Regulations, the Western Gas Parties will, as soon as practicable, prepare and file (if required) with the Commission such amendment or supplement, whether by filing documents pursuant to the Exchange Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Partnership Registration Statement comply with such requirements.
(c) The Western Gas Parties, during the period when the Partnership Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required by the Act to be delivered in connection with sales of such Securities, will give you notice of its intention to file any amendment to the Partnership Registration Statement or any amendment or supplement to the Partnership Prospectus, whether pursuant to the Act or otherwise and will furnish you with copies of any such amendment or supplement or other documents proposed to be filed in a reasonable time for review by the Underwriters in advance of filing.
(d) The Western Gas Parties, during the period when the Partnership Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required by the Act to be delivered by you in connection with sales of Securities, will notify you, as soon as practicable, and confirm the notice in writing, of: (i) the effectiveness of any amendment to the Partnership Registration Statement; (ii) the mailing or delivery to the Commission for filing of any supplement to the Partnership Prospectus, or any document to be filed pursuant to the Exchange Act; (iii) the receipt of any comments from the Commission with respect to the Partnership Registration Statement or the Partnership Prospectus; (iv) any request by the Commission for any amendment to the Partnership Registration Statement or any amendment or supplement to the Partnership Prospectus or for additional information; (v) the issuance by the Commission of any stop order suspending the effectiveness of the Partnership Registration Statement or of the threat or initiation of any proceedings for that purpose or pursuant to Section 8A of the Act; and (vi) the receipt by either of the Western Gas Parties of any notice of objection of the Commission to the use of the Partnership Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act. The Western Gas Parties will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
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(e) The Western Gas Parties will deliver to you, as soon as practicable, as many conformed copies of the Partnership Registration Statement (as originally filed) and of each amendment thereto (including, except to the extent available on EDGAR, exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Partnership Prospectus and the Disclosure Package pursuant to Item 12 of Form S-3 under the Act) as you may reasonably request and will also deliver to you, upon your request, a conformed copy of the Partnership Registration Statement and each amendment thereto for each of the Underwriters.
(f) The Western Gas Parties will cooperate with you to qualify the Deliverable Partnership Common Units under the applicable Blue Sky or securities laws of such states and other jurisdictions of the United States as you may designate, and will cooperate in maintaining such qualifications in effect for as long as may be required for the distribution of such Deliverable Partnership Common Units except that the Western Gas Parties shall not be obligated to file any general consent to service or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified. In each jurisdiction in which such Deliverable Partnership Common Units or the sale thereof shall have been qualified as above provided, the Western Gas Parties will cooperate with you to make and file such statements and reports in each year as may be required by the laws of such jurisdiction. The Western Gas Parties will cooperate in the determination of the eligibility for investment of the Deliverable Partnership Common Units under the laws of such jurisdictions as you reasonably request.
(g) All Deliverable Partnership Common Units delivered upon settlement of the Purchase Contracts will have been approved for listing on the NYSE.
(h) The Western Gas Parties will not, without your prior written consent, offer, sell, contract to sell or otherwise dispose of any securities designated in such Terms Agreement during the lock-up period specified in the applicable Terms Agreement, other than: (i) the Securities to be sold hereunder; (ii) any Partnership Common Units deliverable upon settlement of the Purchase Contracts or upon exchange of any other existing securities convertible into Partnership Common Units or upon exercise of any existing options to purchase Partnership Common Units; (iii) options or Partnership Common Units sold or issued pursuant to any employee benefit plan or arrangement of the Western Gas Parties or any of the Partnership’s subsidiaries existing on the date of the applicable Terms Agreement; (iv) Partnership Common Units deliverable in connection with any acquisition; and (v) the Partnership Common Units to be sold by the Company’s wholly owned subsidiary in the concurrent secondary offering.
Section 6. Free Writing Prospectuses.
(a) Issuer Free Writing Prospectuses. Each of the Company and the Western Gas Parties represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees, severally and not jointly, that, unless it obtains the prior consent of the Company, the Western Gas Parties and the Representative, it has not made and will not make any offer relating to the Securities or the Partnership Common Units that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company, the Western Gas Parties and the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Western Gas Parties represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. Each of the Company and the Western Gas Parties represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file with the Commission any Company Additional Written Communication made in connection with the offering of the Securities, including the Partnership Common Units.
(b) Term Sheets. If so indicated in the Terms Agreement, the Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Underwriters, and each of the Company and the Partnership will file such final term sheet within the period required by Rule 433(d)(5)(ii) following the date such final terms have been established for
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all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus with respect to the Company and the Partnership and a Permitted Free Writing Prospectus with respect to the Company and the Partnership for purposes of the Terms Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clauses (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of these Standard Provisions.
Section 7. Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of Vinson & Elkins L.L.P., special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
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(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
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(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
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(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective effective dates and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1.
With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above.
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In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP Act. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company, the General Partner and other sources. In rendering such opinion, special counsel for the Company and the Western Gas Parties may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Deputy General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns all of the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(ii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, in all cases except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(iii) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(iv) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement and the Units Documents by the Company, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(v) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed.
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Such counsel shall also state that each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
With respect to paragraph above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein.
In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware governing corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foregoing opinion, such counsel may have received and may rely upon such certificates and other documents and information as he or she may reasonably request to pass upon such matters.
3. The opinion or opinions, dated as of the applicable Closing Date, of counsel for the Underwriters specified in the Prospectus, the Partnership Prospectus and the Disclosure Package, with respect to the validity of the Securities and the Deliverable Partnership Common Units, the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus, the Disclosure Package and other related matters as you reasonably may request. In rendering the foregoing opinion, such counsel may rely, to the extent recited therein, as to matters involving the laws of any jurisdiction other than the States of Delaware and New York, upon opinions of local counsel. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and the General Partner and other sources believed by them to be responsible.
(c) Subsequent to the execution and delivery of the Terms Agreement, there shall not have occurred (i) any Material Adverse Change or Partnership Material Adverse Change which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities; (ii) any downgrading in the rating of any debt securities of the Company or the Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company or the Partnership (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company or the Partnership has been placed on negative outlook (other than an announcement, following a ratings upgrading by a ratings agency, that the Company or the Partnership has been placed on negative outlook by such ratings agency); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls, the effect of which is such as to make it, in the judgment of the Representative, impractical to proceed with the offering, sale or delivery of, or to enforce contracts for the sale of, the Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company or the Partnership on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to proceed with the offering, sale or delivery of, or to enforce contracts for the sale of, the Securities.
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(d) (i) On the date of the Terms Agreement, concurrent with its execution, you shall have received from KPMG LLP a letter, dated such date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and its subsidiaries contained in or incorporated by reference into the Registration Statement, the Prospectus and the Disclosure Package and (ii) at the applicable Closing Date, KPMG LLP shall have furnished to you a letter, dated the date of delivery thereof, to the effect that they reaffirm the statements made in their letter furnished pursuant to the preceding clause (i), except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(e) (i) On the date of the Terms Agreement, concurrent with its execution, you shall have received from KPMG LLP a letter, dated such date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Partnership and its subsidiaries contained in or incorporated by reference into the Partnership Registration Statement and the Partnership Prospectus and (ii) at the applicable Closing Date, KPMG LLP shall have furnished to you a letter, dated the date of delivery thereof, to the effect that they reaffirm the statements made in their letter furnished pursuant to the preceding clause (i), except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(f) (i) On the date of the Terms Agreement but prior to its execution, you shall have received from Miller and Lents, Ltd., a letter, dated such date, in form and substance satisfactory to you, with respect to the December 31, 2014 reserve information for the Company, included or incorporated by reference into the Registration Statement, the Prospectus and the Disclosure Package and (ii) at the applicable Closing Date, Miller and Lents, Ltd. shall have furnished to you a letter, dated the date of delivery thereof, to the effect that they reaffirm the statements made in their letter furnished pursuant to the preceding clause (i).
(g) The Underwriters shall have received a certificate, dated the applicable Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state, in their respective capacities as officers of the Company, that: the representations and warranties of the Company in the Terms Agreement (including these Standard Provisions) are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; 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, to their knowledge and after reasonable investigation, are contemplated by the Commission; and subsequent to the date of the most recent financial statements in the Disclosure Package, there has been no Material Adverse Change except as set forth in the Disclosure Package.
(h) The Underwriters shall have received a certificate, dated the applicable Closing Date, of an executive officer of the General Partner and a principal financial or accounting officer of the General Partner in which such officers shall state, in their respective capacities as officers of the General Partner, that: the representations and warranties of the Western Gas Parties in the Terms Agreement (including these Standard Provisions) are true and correct; the Western Gas Parties have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of the Partnership Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or, to their knowledge and after reasonable investigation, are contemplated by the Commission; and subsequent to the date of the most recent financial statements in the Disclosure Package, there has been no Partnership Material Adverse Change except as set forth in the Disclosure Package.
(i) At the applicable Closing Date, counsel for the Underwriters shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Western Gas Parties in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to you and counsel for the Underwriters.
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(j) The Financial Industry Regulatory Authority, Inc. (“FINRA”) shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby.
(k) The Securities shall have been approved for listing on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representative.
If any condition specified in this Section shall not have been fulfilled when and as required by these Standard Provisions to be fulfilled, the applicable Terms Agreement may be terminated by you by notice to the Company and the Western Gas Parties at any time at or prior to the applicable Closing Date, and such termination shall be without liability of any party to any other party except as otherwise provided in Sections 8, 9 and 10 hereof.
The obligations of the Underwriters to purchase Additional Securities pursuant to any Terms Agreement are subject to the delivery to you at the Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company and the Western Gas Parties, the due authorization and issuance of the Additional Securities and other matters related to the issuance of the Additional Securities.
Section 8. Payment of Expenses. The Company will pay all expenses incident to the performance of its and Western Gas Parties’ obligations under the Terms Agreement (including these Standard Provisions), including but not limited to any filing fees and other expenses (including reasonable fees and disbursements of counsel to the Underwriters) incurred in connection with qualification of the Securities for sale under the laws of such jurisdictions as the Underwriters may designate and the preparation and printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for any costs and expenses related to, the review by FINRA of the Securities (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such review), for the fees and expenses of the Trustee under the Indenture and the Purchase Contract Agent under the Purchase Contract Agreement, costs and expenses relating to investor presentations or any “road show” in connection with the offering and sale of the Securities including, without limitation, any travel expenses of the Company’s and the General Partners’ officers and employees and any other expenses of the Company or the Western Gas Parties including the chartering of airplanes, fees and expenses incident to listing the Securities and Issuable APC Common Stock on the NYSE, fees and expenses in connection with the registration of the Securities under the Exchange Act, and expenses incurred in distributing any Statutory Prospectuses, the Prospectus and the Partnership Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors.
Section 9. Indemnity and Contribution.
(a) Indemnification of Underwriters by the Company. The Company will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Prospectus, any Issuer Free Writing Prospectus or any Company Additional Written Communication, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement.
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(b) Indemnification of Underwriters by the Western Gas Parties. The Western Gas Parties, jointly and severally, will indemnify and hold harmless each Indemnified Party and the Company against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Partnership Registration Statement at any time, any Partnership Statutory Prospectus as of any time, the Partnership Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Western Gas Parties will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Partnership or the General Partner by any Underwriter through the Representative, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement.
(c) Indemnification of Company and the Partnership. Each Underwriter will severally and not jointly indemnify and hold harmless the Company, the Partnership and the General Partner, each of their respective directors and each of their respective officers who sign the Registration Statement or the Partnership Registration Statement, as the case may be, and each person, if any, who controls the Company, the General Partner or the Partnership within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”), against any losses, claims, damages or liabilities, joint or several, to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, the Partnership Registration Statement at any time, any Statutory Prospectus as of any time, any Partnership Statutory Prospectus as of any time, the Prospectus, the Partnership Prospectus, any Issuer Free Writing Prospectus or any Company Additional Written Communication, or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company, the Partnership or the General Partner, as the case may be, by such Underwriter through the Representative, if any, specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement.
(d) Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a), (b) or (c) above, notify the indemnifying party in writing of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except
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with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof, provided that the indemnifying party shall reimburse any legal or other expenses incurred by such indemnified party for separate counsel (including a local counsel) if (i) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party or (ii) the named parties in any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party reasonably determines that representation of both parties by the same counsel would be inappropriate due to the actual or potential differing interest between them. It is understood and agreed that the indemnifying party shall not, in connection with any action or related action in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time the indemnified party shall have requested in writing that the indemnifying party reimburse the indemnified party for fees and expenses of counsel as contemplated by this Section 9, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying party of such request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action 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 an indemnified party. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (in addition to appropriate local counsel) at any time for any indemnified party in connection with any one action or separate but substantially similar or related actions arising in the same jurisdiction out of the same general allegations or circumstances.
(e) Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a), (b) or (c) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Western Gas Parties on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Western Gas Parties on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company and the Western Gas Parties on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters from the Company hereunder. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Partnership, the General Partner or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (e). Notwithstanding the provisions of this subsection (e), 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 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 Act) shall be entitled to contribution from
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any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. The Company, the Partnership, the General Partner and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9(e) 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 in this Section 9(e).
(f) Control Persons. The obligations of the Company and the Western Gas Parties under this Section shall be in addition to any liability which the Company and the Western Gas Parties may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company and the General Partner, to each officer of the Company and the General Partner who has signed the Registration Statement and the Partnership Registration Statement, as the case may be, and to each person, if any, who controls the Company, the General Partner or the Partnership within the meaning of the Act.
Section 10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers, the Partnership and the officers of the General Partner and of the several Underwriters set forth in or made pursuant to the Terms Agreement (including these Standard Provisions) will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company, the Partnership, the General Partner or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Securities. If the purchase of the Securities by the Underwriters is not consummated for any reason other than because of the termination of the Terms Agreement pursuant to Sections 7(c)(iii), (iv), (vi), (vii) and (viii) or Section 11 hereof, the Company will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Securities, and the respective obligations of the Company, the Partnership, the General Partner and the Underwriters pursuant to Section 9 hereof shall remain in effect. In addition, if any Securities have been purchased under the Terms Agreement, the representations and warranties in Sections 1 and 2 hereof and all obligations under Sections 4 and 5 hereof shall also remain in effect.
Section 11. Default. If one or more of the Underwriters participating in an offering of Securities shall fail at the applicable Closing Date or Option Closing Date, as the case may be, to purchase the Securities which it or they are obligated to purchase at such time under the applicable Terms Agreement (the “Defaulted Securities”), then such of you as are named therein shall have the right, within 36 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, during such 36 hours you shall not have completed such arrangements for the purchase of all of the Defaulted Securities, and if the Company shall not have completed arrangements for the purchase of all, but not less than all, of the Defaulted Securities by other underwriters satisfactory to such of you as are named in the applicable Terms Agreement, then:
(a) if the aggregate number of Defaulted Securities does not exceed 10% of the aggregate number of Firm Securities to be purchased pursuant to such Terms Agreement, the non-defaulting Underwriters shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations under the applicable Terms Agreement bear to the aggregate number of Firm Securities set forth opposite the names of all such non-defaulting Underwriters; or
(b) if the aggregate number of Defaulted Securities exceeds 10% of the aggregate number of Firm Securities to be purchased pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate, without any liability on the part of any non-defaulting Underwriter or the Company or the Western Gas Parties except, in each case, as provided in Sections 9 and 10 hereof.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability to the Company, the Western Gas Parties or any non-defaulting Underwriter for damages in respect of any default of such Underwriter hereunder and the applicable Terms Agreement.
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In the event of a default by any Underwriter or Underwriters as set forth in this Section which does not result in a termination of the applicable Terms Agreement, either you or the Company shall have the right to postpone the applicable Closing Date or Option Closing Date, as the case may be, for a period not exceeding seven days in order that any required changes in the Registration Statement, the Partnership Registration Statement, the Prospectus or the Partnership Prospectus or in any other documents or arrangements may be effected.
Section 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 you, at the address indicated in the applicable Terms Agreement; notices to the Company shall be directed to it at: 1201 Lake Robbins Drive, The Woodlands, Texas 77380-1046, attention of Vice President and Treasurer, or to such other address or person as may be designated in any such notice; and notices to the Western Gas Parties shall be directed to it at: 1201 Lake Robbins Drive, The Woodlands, Texas 77380-1046, attention of Chief Executive Officer, or to such other address or person as may be designated in any such notice.
Section 13. Parties. These Standard Provisions shall inure to the benefit of and be binding upon you, the Company and the Western Gas Parties, and any Terms Agreement shall inure to the benefit of and be binding upon the Company, the Western Gas Parties and any Underwriter who becomes a party to a Terms Agreement, and their respective successors. Nothing expressed or mentioned herein or any Terms Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto or thereto and their respective successors and the controlling persons and officers and directors referred to in Section 9 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of these Standard Provisions or a Terms Agreement or any provision herein or therein contained. These Standard Provisions and any Terms Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the parties and their respective successors and such 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 any Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 14. GOVERNING LAW. THESE STANDARD PROVISIONS AND EACH TERMS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THESE STANDARD PROVISIONS AND EACH TERMS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 15. Counterparts. The applicable Terms Agreement may be signed by the parties in counterparts which together shall constitute one and the same agreement among the parties and shall become effective at such time as each of the parties shall have signed such counterparts and shall have notified the other parties thereof.
Section 16. Absence of Fiduciary Relationship. Each of the Company and the Western Gas Parties acknowledges and agrees that:
(a) No Other Relationship. The Underwriters have been retained solely to act as underwriters in connection with the sale of the Securities and that no fiduciary, advisory or agency relationship between the Company and the Underwriters, or the Western Gas Parties and the Underwriters, have been created in respect of any of the transactions contemplated by the Terms Agreement (including these Standard Provisions incorporated by reference therein), the Prospectus or the Partnership Prospectus, irrespective of whether the Underwriters have advised or are advising the Company or the Western Gas Parties on other matters;
(b) Arm’s-Length Negotiations. The price of the Securities of each series set forth in the Terms Agreement was established by the Company following discussions and arm’s-length negotiations with the Representative, and each of the Company and the Western Gas Parties is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by the Terms Agreement;
(c) Absence of Obligation to Disclose. Each of the Company and the Western Gas Parties has been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and the Western Gas Parties, and that the Underwriters have no obligation to disclose such interests and transactions to the Company and the Western Gas Parties by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. Each of the Company and the Western Gas Parties waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Company or the Western Gas Parties in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, partners, employees or creditors of the Company or the Western Gas Parties.
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Section 17. Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, the Partnership and the General Partner, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
Section 18. Waiver of Jury Trial. Each of the Company, the Partnership, the General Partner and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the applicable Terms Agreement (including these Standard Provisions incorporated by reference therein) or the transactions contemplated hereby.
Section 19. Research Analyst Independence. Each of the Company and the Western Gas Parties acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and the Western Gas Parties and/or the offering that differ from the views of their respective investment banking divisions. Each of the Company and the Western Gas Parties hereby waives and releases, to the fullest extent permitted by law, any claims that the Company or the Western Gas Parties may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Western Gas Parties by such Underwriters’ investment banking divisions. Each of the Company and the Western Gas Parties acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Terms Agreement.
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ANNEX A
TO
UNDERWRITING AGREEMENT
This Annex A is incorporated into that certain Underwriting Agreement, dated June 4, 2015, among Anadarko Petroleum Corporation, Western Gas Equity Partners, LP, Western Gas Equity Holdings, LLC and J.P. Morgan Securities LLC, as representative of the several underwriters named therein.
Unless otherwise defined herein, capitalized terms used herein have the meanings ascribed to them in the Underwriting Agreement. Western Gas Holdings, LLC, a Delaware limited liability company (“WES GP”), Western Gas Partners, LP, a Delaware limited partnership (“WES”) and WES’s direct and indirect subsidiaries listed on Schedule A hereto (the “Operating Subsidiaries”) are collectively referred to herein as the “WES Entities.” The Western Gas Parties and the WES Entities are collectively referred to as the “Partnership Entities.”
Each of the Western Gas Parties, jointly and severally, represents and warrants to you, and to each Underwriter named in a Terms Agreement as of the date thereof, as follows:
(a) The Partnership has filed with the Commission a registration statement on Form S-3 (No. 333-193163), including a related prospectus or prospectuses, covering the registration of the Partnership Common Units under the Act, which has been declared effective.
(b) The Partnership Registration Statement constitutes an effective shelf registration statement filed within three years of the date of the applicable Terms Agreement, and the Partnership is a “well-known seasoned issuer” (as defined in Rule 405 of the Act). No order suspending the effectiveness of the Partnership Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Partnership or related to the offering has been initiated or threatened by the Commission. References herein to the Partnership Registration Statement shall include such new registration statement or post-effective amendment, as the case may be. The Partnership has paid the required Commission filing fees relating to the Deliverable Partnership Common Units.
(c) (i) At the time of filing the Partnership Registration Statement and (ii) at the date of the Terms Agreement, the Partnership was not and is not an “ineligible issuer,” as defined in Rule 405.
(d) (i) (A) At the time the Partnership Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C) on the Effective Date relating to the Securities and (D) on the Closing Date, the Partnership Registration Statement conformed and will conform in all material respects to the requirements of the Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at the time of filing the Partnership Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Partnership Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any such document made in reliance upon and in conformity with written information furnished to the Partnership by any Underwriter through the Representative, if any, specifically for use therein, it being understood and agreed that the only such information is that described as such in the Terms Agreement.
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(e) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Partnership notified or notifies the Representative as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Partnership Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Partnership Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) the Partnership has promptly notified or will promptly notify the Representative and (ii) the Partnership has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The preceding sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Partnership by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information is that described as such in the Terms Agreement.
(f) The documents incorporated by reference in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and will not contain any 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, in light of the circumstances under which they were made, not misleading.
(g) Formation of the Partnership Entities. Each of the Partnership Entities has been duly formed and is validly existing as a limited partnership or limited liability company, as the case may be, and is in good standing under the laws of the State of Delaware, the State of Texas, the State of Wyoming or the State of Colorado, as the case may be, with full limited partnership or limited liability company power and authority to own, lease and operate its properties and conduct its business as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus and (i) in the case of the Western Gas Parties, to execute and deliver the Terms Agreement (including the Standard Provisions) and consummate the transactions contemplated hereby, and (ii) in the case of the General Partner, to act as the general partner of the Partnership.
(h) Foreign Qualification and Registration. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership or limited liability company, as the case may be, and is in good standing in each jurisdiction where the ownership or lease of its properties or the conduct of its business requires such qualification (as set forth in Schedule A hereto), except for any failures to be so qualified and in good standing that would not, individually or in the aggregate, (i) have a material adverse effect on the business, assets, condition (financial or otherwise), results of operations or prospects of the Partnership Entities taken as a whole (a “Partnership Material Adverse Effect”) or (ii) subject the limited partners of the Partnership to any material liability or disability.
(i) Ownership of the General Partner. Western Gas Resources, Inc. is the sole member of the General Partner, with a 100% membership interest in the General Partner; such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of the General Partner, as in effect as of the date hereof and at the time of purchase and each additional time of purchase, if any (the “General Partner LLC Agreement”), and is fully paid (to the extent required by the General Partner LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and Western Gas Resources, Inc. owns such membership interest free and clear of all liens, encumbrances, security interests, charges or claims (“Liens”).
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(j) Ownership of General Partner Interest in the Partnership. The General Partner is the sole general partner of the Partnership, with a 0.0% non-economic general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the agreement of limited partnership of the Partnership, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Partnership Agreement”), and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement and as otherwise described in the Partnership Registration Statement (excluding exhibits thereto), the Disclosure Package and the Partnership Prospectus.
(k) Ownership of WES GP by the Partnership. The Partnership is the sole member of WES GP, with a 100% membership interest in WES GP; such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of WES GP, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “WES GP LLC Agreement”), and is fully paid (to the extent required by the WES GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Section 18-607 and 18-804 of the LLC Act); and the Partnership owns such membership interest free and clear of all Liens.
(l) Ownership of the General Partner Interest in WES. WES GP is the sole general partner of WES, with a 1.8% general partner interest in WES consisting of 2,583,068 WES general partner units on the Closing Date; such general partner interest has been duly authorized and validly issued in accordance with the agreement of limited partnership of WES, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “WES Partnership Agreement”), and WES GP owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the WES Partnership Agreement and as otherwise described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
(m) Ownership of the Incentive Distribution Rights in WES. WES GP owns all of the incentive distribution rights in WES (the “Incentive Distribution Rights”); such Incentive Distribution Rights have been duly authorized and validly issued in accordance with the WES Partnership Agreement, and are fully paid (to the extent required by the WES Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act), and WES GP owns the Incentive Distribution Rights free and clear of all Liens, except for restrictions on transferability as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
(n) Ownership of WES. On the Closing Date, the Partnership will own 49,296,205 common units representing limited partner interests in WES (the “WES Common Units”); such WES Common Units have been duly authorized and validly issued in accordance with the WES Partnership Agreement, and are fully paid (to the extent required by the WES Partnership Agreement) and nonassessable (except as nonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and the Partnership owns and will own such limited partner interest free and clear of all Liens, except for restrictions on transferability contained in the WES Partnership Agreement and as otherwise described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
(o) Capitalization. As of the date hereof, there are 218,913,688 Partnership Common Units outstanding, and Western Gas Resources, Inc. directly or indirectly owns 193,387,365 Common Units (the “Sponsor Units”). All such Sponsor Units and the limited partner interests represented thereby have been duly authorized and validly issued in accordance with the Partnership Agreement and are fully paid (to the extent required by the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by (i) matters described in the Partnership Registration Statement, the Disclosure Package and the Prospectus under the caption “Risk Factors—Risks Inherent in our Business—You may not have limited liability if a court finds that unitholder action constitutes control of our business” and (ii) Sections 17-303,
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17-607 and 17-804 of the Delaware LP Act; and all of the Sponsor Units are owned free and clear of all Liens, except with respect to the restrictions on transferability contained in the Partnership Agreement and as otherwise described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus.
(p) Ownership of Wholly Owned Operating Subsidiaries. WES directly or indirectly owns all of the issued and outstanding partnership interests or membership interests, as applicable, in the Operating Subsidiaries other than Chipeta Processing LLC, a Delaware limited liability company (“Chipeta”), in each case free and clear of all Liens. The issued or outstanding partnership interests and membership interests, as applicable, of each Operating Subsidiary other than Chipeta have been duly authorized and validly issued in accordance with its partnership agreement or limited liability company agreement, as applicable, each as in effect as of the date hereof and on the Closing Date and the Option Closing Date (collectively, the “Constituent Agreements”), and are fully paid (to the extent required by the Constituent Agreements) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware LLC Act, Article 101.206 of the Texas Business Organizations Code, Sections 17-29-405 and 17-29-406 of the Wyoming Limited Liability Company Act and Section 7-80-606 of the Colorado Limited Liability Company Act, as applicable).
(q) Ownership of Chipeta. WGR Operating, LP, a Delaware limited partnership (the “Operating Partnership”), owns a 75.0% membership interest in Chipeta; such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Chipeta, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Chipeta LLC Agreement”), and is fully paid (to the extent required by the Chipeta LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interest free and clear of all Liens.
(r) Ownership of Fort Union. Western Gas Wyoming, L.L.C., a Wyoming limited liability company (“WGW”), owns a 14.81% membership interest in Fort Union Gas Gathering, L.L.C., a Delaware limited liability company (“Fort Union”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Fort Union, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Fort Union LLC Agreement”), and is fully paid (to the extent required by the Fort Union LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and WGW owns such membership interest free and clear of all Liens.
(s) Ownership of White Cliffs. Anadarko Wattenberg Company, LLC, a Delaware limited liability company (“AWC”), owns a 10.0% membership interest in White Cliffs Pipeline, L.L.C., a Delaware limited liability company (“White Cliffs”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of White Cliffs, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “White Cliffs LLC Agreement”), and is fully paid (to the extent required by the White Cliffs LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and AWC owns such membership interest free and clear of all Liens.
(t) Ownership of Rendezvous. Mountain Gas Resources LLC, a Delaware limited liability company (“Mountain Gas”), owns a 22.0% membership interest in Rendezvous Gas Services, L.L.C., a Wyoming limited liability company (“Rendezvous”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Rendezvous, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Rendezvous LLC Agreement”), and is fully paid (to the extent required by the Rendezvous LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-29-405 and 17-29-406 of the Wyoming Limited Liability Company Act); and Mountain Gas owns such membership interest free and clear of all Liens.
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(u) Ownership of Enterprise. The Operating Partnership owns a 25.0% membership interest in Enterprise EF78 LLC, a Delaware limited liability company (“Enterprise”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Enterprise, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Enterprise LLC Agreement”), and is fully paid (to the extent required by the Enterprise LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interest free and clear of all Liens.
(v) Ownership of Front Range. The Operating Partnership owns a 33.33% membership interest in Front Range Pipeline LLC, a Delaware limited liability company (“Front Range”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Front Range, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Front Range LLC Agreement”), and is fully paid (to the extent required by the Front Range LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interest free and clear of all Liens.
(w) Ownership of Express Gathering. The Operating Partnership owns a 20.0% membership interest in Texas Express Gathering LLC, a Delaware limited liability company (“Express Gathering”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Express Gathering, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Express Gathering LLC Agreement”), and is fully paid (to the extent required by the Express Gathering LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interest free and clear of all Liens.
(x) Ownership of Express Pipeline. The Operating Partnership owns a 20.0% membership interest in Texas Express Pipeline LLC, a Delaware limited liability company (“Express Pipeline”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of Express Pipeline, as in effect as of the date hereof and on the Closing Date and the Option Closing Date (the “Express Pipeline LLC Agreement”), and is fully paid (to the extent required by the Express Pipeline LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interest free and clear of all Liens.
(y) No Other Subsidiaries. The Partnership has no direct or indirect “subsidiaries” (as defined under the Act) other than the WES Entities. Other than its ownership interest in the WES Entities, the Partnership does not own, and on the Closing Date and the Option Closing Date will not own, directly or indirectly, any shares of stock, any other equity interests or any long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity, other than its interests in Fort Union, White Cliffs, Rendezvous, Enterprise, Front Range, Express Gathering and Express Pipeline and the note issued by Anadarko Petroleum Corporation as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus. All equity interests in the WES Entities have been issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right. No options, warrants or other rights to purchase, agreements or other obligations to issue or rights to convert any obligation into equity interests in any of the WES Entities are outstanding other than (i) pursuant to awards granted under the WES 2008 Long-Term Incentive Plan or (ii) as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
(z) Conformity of Securities to Description. The Deliverable Partnership Common Units will conform in all material respects to the descriptions thereof contained in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
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(aa) Authority and Authorization. Each of the Western Gas Parties has all requisite power and authority under the Partnership Agreement and the Delaware LP Act or the General Partner LLC Agreement and the Delaware LLC Act, as applicable, to execute and deliver the Terms Agreement (including the Standard Provisions) and perform its obligations hereunder. On the Closing Date and the Option Closing Date, all limited partnership and limited liability company action, as the case may be, required to be taken by the Partnership Entities or any of their partners or members for the consummation of the transactions contemplated hereby shall have been validly taken.
(bb) Authorization, Execution and Delivery of the Terms Agreement. The Terms Agreement (including the Standard Provisions) has been duly authorized, executed and delivered by each of the Western Gas Parties.
(cc) No Defaults. No Partnership Entity is in breach or violation of or in default under (nor has any event occurred which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (i) its formation, governing or other organizational documents, (ii) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE), or (v) any decree, judgment or order applicable to it or any of its properties, except in the case of clauses (ii) through (v) for any such breaches, violations or defaults that would not, individually or in the aggregate, have a Partnership Material Adverse Effect, or prevent or materially interfere with the consummation of the transactions contemplated by the Terms Agreement, including the proposed offering of the Securities.
(dd) No Conflicts. The execution, delivery and performance of the Terms Agreement (including the Standard Provisions) by the Western Gas Parties and the consummation of the transactions contemplated hereby will not conflict with, result in any breach or violation of, constitute a default under (or constitute any event which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under), or result in the creation or imposition of a Lien on any property or assets of any Partnership Entity pursuant to (i) the formation, governing or other organizational documents of any of the Partnership Entities, (ii) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which any of the Partnership Entities is a party or by which any of the Partnership Entities or any of their respective properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE), or (v) any decree, judgment or order applicable to any of the Partnership Entities or any of their respective properties, except in the cases of clauses (ii) through (v) for any such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, have a Partnership Material Adverse Effect, or prevent or materially interfere with the consummation of the transactions contemplated by the Terms Agreement, including the proposed offering of the Securities.
(ee) No Consents. No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NYSE), or approval of the security holders of the Partnership Entities (each, a “Consent”), is required in connection with the execution, delivery and performance of the Terms Agreement by the Western Gas Parties or the consummation by the Partnership Entities of the transactions contemplated hereby, other than (i) Consents required under the Act, the Exchange Act and state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, (ii) under the rules and regulations of FINRA, (iii) Consents that have been, or prior to the Closing Date will be, obtained and (iv) Consents that, if not obtained, would not, individually or in the aggregate, have a Partnership Material Adverse Effect.
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(ff) No Preemptive Rights, Registration Rights or Options. Except as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus, there are no (i) preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity securities of the Partnership or (ii) outstanding options or warrants to purchase any securities of the Partnership, in each case pursuant to any agreement or other instrument to which the Partnership is a party or by which the Partnership may be bound. Except for such rights that have been waived or as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus, neither the filing of the Partnership Registration Statement nor the offering or sale of the Securities as contemplated by the Terms Agreement gives rise to any rights for or relating to the registration of any the Partnership Common Units or other securities of the Partnership.
(gg) Permits. Each of the Partnership Entities has all necessary licenses, authorizations, consents and approvals (each, a “Permit”) and has made all necessary filings required under any applicable law, regulation or rule, and has obtained all necessary Permits from other persons, in order to conduct its business, except for such Permits the absence or omission of which would not, individually or in the aggregate, result in a Partnership Material Adverse Effect; and no Partnership Entity is in violation of or default under, or has received notice of any proceedings relating to the revocation or modification of, any such Permit or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to such Partnership Entity, except for any such violations, defaults, revocations or modifications that would not, individually or in the aggregate, have a Partnership Material Adverse Effect.
(hh) Disclosure of Certain Items. All legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, properties, leases or documents of a character required to be described in or incorporated by reference into the Partnership Registration Statement, the Disclosure Package or the Partnership Prospectus or to be filed as an exhibit to the Partnership Registration Statement have been so described or filed as required; and the statements included in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus under the headings “Provisions of Our Partnership Agreement Relating to Cash Distributions,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Results of Operations—Liquidity and Capital Resources,” “Business and Properties—Regulation of Operations,” “Business and Properties—Environmental Matters,” “Business and Properties—Title to Properties and Rights-of-Way,” “Directors, Executive Officers and Corporate Governance—Management of Western Gas Equity Partners, LP,” “Certain Relationships and Related Transactions, and Director Independence,” “Description of Common Units,” “The Partnership Agreement of Western Gas Equity Partners, LP,” “Material U.S. Federal Income Tax Considerations,” “Investment in Our Common Units by Employee Benefit Plans” and “Underwriting,” insofar as they purport to summarize legal or governmental matters or proceedings or the terms of statutes, rules, regulations, agreements or documents, are fair and accurate summaries of such legal or governmental matters or proceedings, statutes, rules, regulations, agreements or documents.
(ii) Litigation. Except as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Western Gas Parties’ knowledge, threatened or contemplated to which the Partnership Entities or any of their respective directors or officers is or would be a party or to which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NYSE), except for any such actions, suits, claims, investigations or proceedings that would not, individually or in the aggregate, if resolved adversely to any Partnership Entity, have a Partnership Material Adverse Effect or prevent or materially interfere with the consummation of the transactions contemplated by the Terms Agreement, including the proposed offering of the Securities.
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(jj) Independent Registered Public Accounting Firm. KPMG LLP, which has audited the financial statements contained or incorporated by reference in the Partnership Registration Statement and the Partnership Prospectus, is an independent registered public accounting firm with respect to the Partnership and the General Partner within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(kk) Financial Statements. The historical financial statements (including the related notes and supporting schedule) contained or incorporated by reference in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus, (i) comply in all material respects with the applicable requirements under the Act and the Exchange Act (except that certain supporting schedules are omitted), (ii) present fairly in all material respects the financial position, results of operations and cash flows of the entities purported to be shown thereby on the basis stated therein at the respective dates or for the respective periods, and (iii) have been prepared in accordance with accounting principles generally accepted in the United States of America consistently applied throughout the periods involved, except to the extent disclosed therein. The other financial information of the General Partner and the Partnership and its subsidiaries, including non-GAAP financial measures, if any, contained or incorporated by reference in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus has been derived from the accounting records of the General Partner, the Partnership and its subsidiaries, and fairly presents the information purported to be shown thereby. Nothing has come to the attention of any of the Partnership Entities that has caused them to believe that the statistical and market-related data included in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(ll) No Material Adverse Change. Subsequent to the respective dates as of which information is given in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus, in each case excluding any amendments or supplements to the foregoing made after the execution of the Terms Agreement, except as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus, there has not been (i) any material adverse change, or any developments that are reasonably likely to result in, individually or in the aggregate, a material adverse change, in the business, assets, management, condition (financial or otherwise), prospects or results of operations of the Partnership Entities (taken as a whole), (ii) any transaction that is material to the Partnership Entities (taken as a whole), (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by any Partnership Entity that is material to the Partnership Entities (taken as a whole), (iv) any material change in the capitalization, ownership or outstanding indebtedness of any Partnership Entity or (v) any dividend or distribution of any kind declared, paid or made on the security interests of any Partnership Entity (a “Partnership Material Adverse Change”).
(mm) Investment Company. None of the Partnership Entities is, and at no time during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of the Securities will any of them be, nor, after giving effect to the proposed offering of the Securities and delivery of the Deliverable Partnership Common Units, will any of them be, an “investment company” or an entity “controlled” by an investment company, as such terms are defined in the Investment Company Act of 1940, as amended.
(nn) Title to Properties. The Partnership Entities have good and marketable title to all real property and good title to all personal property described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus as being owned by any of them, free and clear of all Liens, except for (i) Liens that do not materially affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Partnership Entities and (ii) Liens described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus.
(oo) Rights-of-Way. Each Partnership Entity has such consents, easements, rights-of-way or licenses from any person (“rights-of-way”) as are necessary to enable it to conduct its business in the manner described in the Partnership Registration Statement, the Disclosure Package and the Partnership
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Prospectus, subject to such qualifications as may be set forth in the Partnership Registration Statement, the Disclosure Package or the Partnership Prospectus, except for (i) qualifications, reservations and encumbrances that would not, individually or in the aggregate, have a Partnership Material Adverse Effect and (ii) such rights-of-way the absence or omission of which would not, individually or in the aggregate, have a Partnership Material Adverse Effect; and, except as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus or as would not interfere with the operations of the Partnership Entities as conducted on the date hereof to such a material extent that the Representative could reasonably conclude that proceeding with the proposed offering of the Securities would be inadvisable, none of such rights-of-way contains any restriction that is materially burdensome to the Partnership Entities, taken as a whole.
(pp) Labor and Employment Matters. No Partnership Entity is engaged in any unfair labor practice, and no labor disputes with the employees of or seconded to any Partnership Entity exist or, to the knowledge of the Western Gas Parties, are imminent or threatened that would, individually or in the aggregate, have a Partnership Material Adverse Effect. To the knowledge of the Western Gas Parties: (i) there is (A) no unfair labor practice complaint pending or threatened against any Partnership Entity before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements pending or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or threatened against any Partnership Entity and (C) no union representation dispute currently existing concerning the employees of or seconded to any Partnership Entity, (ii) no union organizing activities are currently taking place concerning the employees of or seconded to any Partnership Entity and (iii) there has been no violation of any federal, state, local or foreign law relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour laws or any provision of ERISA, or the rules and regulations promulgated thereunder concerning the employees of or seconded to any Partnership Entity.
(qq) Environmental Compliance. Except as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Prospectus, (i) each Partnership Entity and each of the properties, assets and operations of the Partnership Entities is in compliance with any and all applicable federal, state or local laws, statutes, ordinances, rules, regulations, orders, decrees, judgments, injunctions, permits, licenses, authorizations or other binding requirements, or common laws, relating to health, safety or the protection, cleanup or restoration of the environment or natural resources, including those relating to the distribution, processing, generation, treatment, storage, disposal, transportation, other handling or release or threatened release of Hazardous Materials (as defined below) (“Environmental Laws”), (ii) each Partnership Entity has timely applied for or received and, to the extent received, is in compliance with all permits, licenses, authorizations or other approvals required under Environmental Laws to conduct its business as it is currently being conducted, (iii) no Partnership Entity has received written notice of any, and to the knowledge of the Western Gas Parties, there are no events, conditions or activities that could reasonably be expected to form the basis for any, actual or potential liability under Environmental Laws for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and (iv) no Partnership Entity is subject to any pending or, to the knowledge of the Western Gas Parties, threatened actions, suits, demands, orders or proceedings against any Partnership Entity relating to any Environmental Laws (collectively, “Proceedings”), except for any (A) failures to comply with Environmental Laws or to timely apply for or receive, or to comply with, permits, licenses, authorizations or other approvals required under Environmental Laws, (B) actual or potential liabilities under Environmental Laws or (C) Proceedings that would not, individually or in the aggregate, have a Partnership Material Adverse Effect. Except as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus, no Partnership Entity has entered into any settlement agreement relating to any alleged violation of any Environmental Law or any actual or alleged release or threatened release or cleanup at any location of any Hazardous Materials (as defined below), except for any such agreements that would not, individually or in the aggregate, have a Partnership Material Adverse Effect. Except as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus, no Partnership Entity is currently named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”). As used herein, “Hazardous Materials” means any material (including, without limitation, pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated by or may give rise to liability under any Environmental Law.
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(rr) ERISA Compliance. None of the following events has occurred or exists with respect to any of the Partnership Entities: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of ERISA, and the regulations and published interpretations thereunder with respect to any Plan (as defined below), determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees of or seconded to the Partnership Entities that would have a Partnership Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees of or seconded to the Partnership Entities by any such Partnership Entity that would have a Partnership Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur with respect to any of the Partnership Entities: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year compared to the amount of such contributions made by the Partnership Entities in the most recently completed fiscal year; (ii) a material increase in the Partnership Entities’ “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of such obligations in the most recently completed fiscal year; (iii) any event or condition giving rise to a liability under Title IV of ERISA that would have a Partnership Material Adverse Effect; or (iv) the filing of a claim by one or more employees of, former employees of, or employees seconded to the Partnership Entities related to its or their employment that would have a Partnership Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which any Partnership Entity may have any liability.
(ss) Tax Returns. All tax returns required to be filed by the Partnership Entities have been timely filed, and all taxes and other assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been timely paid, other than those (i) that are being contested in good faith and for which adequate reserves have been provided or (ii) that, if not paid, would not, individually or in the aggregate, have a Partnership Material Adverse Effect.
(tt) Insurance. The Partnership Entities maintain insurance covering the properties, operations, personnel and businesses of the Partnership Entities as such Partnership Entities reasonably deem adequate; such insurance insures against losses and risks to an extent which is adequate, in accordance with customary industry practice, to protect the Partnership Entities and their respective businesses; all such insurance is fully in force on the date hereof and will be fully in force on the Closing Date and Option Closing Date; and the Partnership Entities have no reason to believe that they will not be able to renew such insurance as and when such insurance expires.
(uu) Third-Party Defaults. To the knowledge of the Western Gas Parties, no third party to any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to or by which any of the Partnership Entities is a party or bound or to which their respective properties are subject is in breach, default or violation under any such agreement (and no event has occurred that, with notice or lapse of time or both, would constitute such an event), which breach, default or violation would have a Partnership Material Adverse Effect.
(vv) Internal Controls. The Partnership Entities maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
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(ww) Disclosure Controls. The Partnership has established and will maintain and evaluate “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Partnership is made known to the General Partner’s Chief Executive Officer and its Chief Financial Officer, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Partnership’s independent auditors and the Audit Committee of the Board of Directors of the General Partner have been advised of (i) all significant deficiencies, if any, in the design or operation of internal control over financial reporting which could adversely affect the Partnership’s ability to record, process, summarize and report financial data and (ii) all fraud, if any, whether or not material, that involves management or other employees who have a role in the Partnership’s internal control over financial reporting; all material weaknesses, if any, in the Partnership’s internal control over financial reporting have been identified to the Partnership’s independent auditors; and since the date of the most recent evaluation of such disclosure controls and procedures and internal control over financial reporting, there have been no significant changes in the Partnership’s internal control over financial reporting or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(xx) Sarbanes-Oxley. The Partnership Entities have taken all necessary action to ensure that, upon and at all times after the filing of the Partnership Registration Statement, the Partnership Entities and their respective officers and directors, in their capacities as such, were and will be in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and the rules and regulations of the Commission and the NYSE promulgated thereunder.
(yy) Foreign Corrupt Practices Act. No Partnership Entity nor, to the knowledge of the Western Gas Parties, any director, officer, agent, employee or affiliate of the Partnership Entities has made any payment of funds of the Partnership Entities or received or retained any funds in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention is of a character required to be disclosed in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
(zz) Money Laundering Laws. The operations of the Partnership Entities are and have been conducted at all times in compliance with applicable Money Laundering Laws; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator or non-governmental authority involving the Partnership Entities with respect to Money Laundering Laws is pending or, to the knowledge of the Western Gas Parties, threatened.
(aaa) OFAC. No Partnership Entity nor, to the knowledge of the Western Gas Parties, any director, officer, agent, employee or affiliate of the Partnership Entities is currently subject to any U.S. sanctions administered by OFAC; and the Partnership Entities will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(bbb) No Prohibition on Distributions. No Partnership Entity is currently prohibited, directly or indirectly, from making distributions with respect to its equity securities, from repaying to any other Partnership Entity any loans or advances or from transferring any property or assets to the Partnership or any other Partnership Entity, except pursuant to the Chipeta LLC Agreement and as described in the Partnership Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Partnership Prospectus.
(ccc) Related Party Transactions. No Partnership Entity has, directly or indirectly (i) extended credit, arranged to extend credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or executive officer of the General Partner or its affiliates, or to or for any family member or affiliate of any director or executive officer of the General Partner or its affiliates or (ii) made any material modification to the term of any personal loan to any director or executive officer of the General Partner or its affiliates, or any family member or affiliate of any director or executive officer of the General Partner or its affiliates.
38
(ddd) Stabilization or Manipulation. None of the Partnership Entities or any of their “affiliates” (as such term is defined in Rule 405 of the Rules and Regulations) has taken, directly or indirectly, any action which has constituted, or that was designed or might reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Partnership Common Units.
(eee) FINRA Affiliations. To the knowledge of the Western Gas Parties, there are no affiliations or associations between (i) any member of FINRA and (ii) the Partnership, the General Partner or any of the General Partner’s officers or directors or any 5% or greater securityholder of the Partnership, except as described in the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus.
(fff) No Distribution of Other Offering Materials. None of the Partnership Entities has distributed, nor will they distribute, prior to the later to occur of (i) the Closing Date and Option Closing Date, and (ii) the completion of the distribution of the Partnership Common Units, any “prospectus” (as defined under the Securities Act) in connection with the offering and sale of the Securities other than the Partnership Registration Statement, the Disclosure Package and the Partnership Prospectus or other materials, if any, permitted by the Act, including Rule 134 promulgated thereunder.
39
Schedule A
to Annex A
Jurisdictions of Foreign Qualification
| Partnership Entity |
Jurisdictions of Foreign Qualification | |
| Western Gas Equity Holdings, LLC | Texas | |
| Western Gas Equity Partners, LP | Arizona, Colorado, Kansas, New Mexico, Oklahoma, Texas, Utah, Wyoming | |
| Western Gas Holdings, LLC | Arizona, Colorado, Kansas, New Mexico, Oklahoma, Texas, Utah, Wyoming | |
| Western Gas Partners, LP | Arizona, Colorado, Kansas, New Mexico, Oklahoma, Texas, Utah, Wyoming | |
| Operating Subsidiaries | ||
| Western Gas Operating, LLC | Arizona, Colorado, Kansas, New Mexico, Oklahoma, Texas, Utah, Wyoming | |
| WGR Operating, LP | Arizona, Colorado, Kansas, New Mexico, Oklahoma, Pennsylvania, Texas, Utah, Wyoming | |
| Anadarko Gathering Company, LLC | Kansas, Louisiana, Mississippi, Oklahoma, Texas, Utah | |
| Pinnacle Gas Treating LLC | None | |
| MIGC LLC | Colorado, Wyoming | |
| Western Gas Wyoming, L.L.C. | None | |
| Chipeta Processing LLC | Colorado, Utah | |
| Kerr-McGee Gathering LLC | None | |
| Anadarko Wattenberg Company, LLC | None | |
| Mountain Gas Resources, LLC | Colorado, Texas, Utah, Wyoming | |
| Mountain Gas Transportation LLC | Colorado, Wyoming | |
| GNB NGL Pipeline LLC | Colorado, Utah | |
| Overland Trail Transmission, LLC | Wyoming | |
| DBM Crude Services, LLC | New Mexico, Texas | |
| DBM Pipeline, LLC | New Mexico, Texas | |
| Delaware Basin Midstream, LLC | New Mexico, Texas | |
| Delaware Basin JV Gathering LLC | Texas | |
40
EXHIBIT A
ANADARKO PETROLEUM CORPORATION
8,000,000 7.50% Tangible Equity Units
TERMS AGREEMENT
Dated: June 4, 2014
| To: | Anadarko Petroleum Corporation |
1201 Lake Robins Drive
The Woodlands, Texas 77380-1046
Attention: Vice President and Treasurer
| Re: | Underwriting Agreement (Standard Provisions) Tangible Equity Units |
| Issuer: | Anadarko Petroleum Corporation (“Anadarko”). | |
| Pricing Date: | June 4, 2015. | |
| Settlement Date: | June 10, 2015. | |
| Title of Securities: | 7.50% Tangible Equity Units (the “Units”). | |
| Number of Units Offered: | 8,000,000 Units (or 9,200,000 Units if the underwriters of the Units Offering exercise their over-allotment option in full). | |
| Stated Amount: | Each Unit has a stated amount of $50. | |
| Components of Each Unit: | Each Unit is comprised of two parts:
• a prepaid equity purchase contract issued by Anadarko (a “Purchase Contract”); and
• a senior amortizing note issued by Anadarko (an “Amortizing Note”), which has an initial principal amount of $10.9507 per Amortizing Note, bears interest at a rate of 1.50% per annum and has a final installment payment date of June 7, 2018. | |
| Fair Market Value of the Units: | Anadarko has determined that the fair market value of each Purchase Contract is $39.0493 and the fair market value of each Amortizing Note is $10.9507. | |
| Reference Price: | $58.20, which is the public offering price in the WGP Common Unit Offering described above (subject to adjustment as described in the Units Preliminary Prospectus Supplement). | |
A-1
| Threshold Appreciation Price: | $50 divided by the Minimum Settlement Rate (rounded to the nearest $0.0001), which initially is $69.8422 and which represents an approximately 20% appreciation over the Reference Price. | |
| Minimum Settlement Rate: | 0.7159 WGP Common Units per Purchase Contract (subject to adjustment as described in the Units Preliminary Prospectus Supplement). | |
| Maximum Settlement Rate: | 0.8591 WGP Common Units per Purchase Contract (subject to adjustment as described in the Units Preliminary Prospectus Supplement). | |
| Settlement Rate: | The following table illustrates the settlement rate per Purchase Contract and the value of the WGP Common Units deliverable upon settlement on the “mandatory settlement date”, determined using the “applicable market value” (each as defined in the Units Preliminary Prospectus Supplement) of WGP Common Units shown, subject to adjustment as described in the Units Preliminary Prospectus Supplement, and assumes that Anadarko does not elect to settle the Purchase Contracts on the mandatory settlement date in shares of Anadarko’s common stock, par value $0.10 per share (“APC Stock”), as described in the Units Preliminary Prospectus Supplement: | |
| Applicable Market Value of WGP Common Units |
Settlement Rate |
Value of WGP Common Units Delivered (Based on the Applicable Market Value Thereof) | ||
| Less than the Reference Price | The Maximum Settlement Rate | Less than $50 | ||
| Greater than or equal to the Reference Price but less than or equal to the Threshold Appreciation Price | A number of WGP Common Units equal to $50, divided by the applicable market value of WGP Common Units | $50 | ||
| Greater than the Threshold Appreciation Price | The Minimum Settlement Rate | Greater than $50 | ||
| As a result, if, on the mandatory settlement date, the applicable market value of WGP Common Units is greater than or equal to the Threshold Appreciation Price, a holder would receive only approximately 83.33% of the appreciation in market value of the WGP Common Units that such holder would have received had such holder purchased $50 worth of WGP Common Units at the public offering price in the WGP Common Unit Offering. |
A-2
| Early Settlement Upon a Fundamental Change: | The following table sets forth the “fundamental change early settlement rate” (as defined in the Units Preliminary Prospectus Supplement) per Purchase Contract for each “unit price” and “effective date” (each as defined in the Units Preliminary Prospectus Supplement) set forth below: |
| Effective Date | ||||||||||||||||
| Unit Price |
June 10, 2015 |
June 7, 2016 |
June 7, 2017 |
June 7, 2018 |
||||||||||||
| $30.00 |
0.6896 | 0.7440 | 0.8025 | 0.8591 | ||||||||||||
| $40.00 |
0.6920 | 0.7408 | 0.7989 | 0.8591 | ||||||||||||
| $45.00 |
0.6884 | 0.7338 | 0.7897 | 0.8591 | ||||||||||||
| $50.00 |
0.6838 | 0.7255 | 0.7771 | 0.8591 | ||||||||||||
| $55.00 |
0.6788 | 0.7168 | 0.7629 | 0.8591 | ||||||||||||
| $58.20 |
0.6758 | 0.7115 | 0.7538 | 0.8591 | ||||||||||||
| $60.00 |
0.6741 | 0.7087 | 0.7487 | 0.8333 | ||||||||||||
| $65.00 |
0.6699 | 0.7014 | 0.7359 | 0.7692 | ||||||||||||
| $69.84 |
0.6665 | 0.6954 | 0.7254 | 0.7159 | ||||||||||||
| $75.00 |
0.6634 | 0.6901 | 0.7163 | 0.7159 | ||||||||||||
| $85.00 |
0.6592 | 0.6828 | 0.7046 | 0.7159 | ||||||||||||
| $90.00 |
0.6577 | 0.6804 | 0.7010 | 0.7159 | ||||||||||||
| $100.00 |
0.6560 | 0.6772 | 0.6969 | 0.7159 | ||||||||||||
| $125.00 |
0.6554 | 0.6751 | 0.6948 | 0.7159 | ||||||||||||
| $150.00 |
0.6569 | 0.6759 | 0.6954 | 0.7159 | ||||||||||||
| $175.00 | 0.6588 | 0.6773 | 0.6963 | 0.7159 | ||||||||||||
| The exact unit price and effective date may not be set forth in the table above, in which case:
• if the unit price is between two unit prices in the table or the effective date is between two effective dates in the table, the fundamental change early settlement rate will be determined by straight line interpolation between the fundamental change early settlement rates set forth for the higher and lower unit prices and the earlier and later effective dates, as applicable, based on a 365-day year;
• if the unit price is greater than $175.00 per WGP Common Unit (subject to adjustment in the same manner as the unit prices set forth in the column headings of the table above), then the fundamental change early settlement rate will be the Minimum Settlement Rate; or
• if the unit price is less than $30.00 per WGP Common Unit (subject to adjustment in the same manner as the WGP Common Unit prices set forth |
A-3
| in the column headings of the table above, the “Minimum Unit Price”), the fundamental change early settlement rate will be determined as if the unit price equaled the Minimum Unit Price, and using straight line interpolation, as described in the first bullet of this paragraph, if the effective date is between two effective dates in the table.
The maximum number of WGP Common Units deliverable under a Purchase Contract is 0.8591, subject to adjustment at the same time and in the same manner as the “fixed settlement rates” (as defined in the Units Preliminary Prospectus Supplement) as set forth under “Description of the Purchase Contracts—Adjustments to the Fixed Settlement Rates” in the Units Preliminary Prospectus Supplement. | ||
| APC Settlement Election: | Unless an “APC delisting” (as defined in the Units Preliminary Prospectus Supplement) has occurred and is continuing, Anadarko has the right to elect to settle each Purchase Contract (including in connection with any early settlement of such Purchase Contract, whether or not in connection with a fundamental change) in shares of APC Stock in lieu of the WGP Common Units that would otherwise be deliverable pursuant to such Purchase Contract, as set forth in the Units Preliminary Prospectus Supplement. In such circumstances, the number of shares of APC Stock that Anadarko will issue and deliver in settlement of a Purchase Contract will generally be calculated by dividing (i) the product of the applicable settlement rate with respect to such Purchase Contract and the average volume weighted average price of WGP Common Units calculated over a 20 consecutive trading day period, by (ii) 98% of the average volume weighted average price of the APC Stock calculated over such period. However, in no event is Anadarko obligated to issue and deliver more than 4.0 shares of APC Stock per Purchase Contract. | |
| Initial Principal Amount of Amortizing Notes: | $10.9507 per Amortizing Note $87,605,600 in the aggregate (or $100,746,440 in the aggregate if the underwriters of the Units Offering exercise their over-allotment option in full). | |
| Installment Payment Dates: | Each March 7, June 7, September 7 and December 7, commencing on September 7, 2015, with a final installment payment date of June 7, 2018. | |
| Payments on the Amortizing Notes: | The Amortizing Notes will pay holders equal quarterly cash installments of $0.9375 per Amortizing Note (except for the September 7, 2015 installment payment, which will be $0.9063 per Amortizing Note), which in the aggregate will be equivalent to a 7.50% cash payment per year with respect to each $50 Stated | |
A-4
| Amount of Units. Each installment will constitute a payment of interest (at an annual rate of 1.50%) and a partial repayment of principal on the Amortizing Notes, allocated with respect to each Amortizing Note as set forth in the following amortization schedule: |
| Installment Payment Date |
Amount of Principal | Amount of Interest | ||||||
| September 7, 2015 |
$ | 0.8666 | $ | 0.0397 | ||||
| December 7, 2015 |
$ | 0.8997 | $ | 0.0378 | ||||
| March 7, 2016 |
$ | 0.9031 | $ | 0.0344 | ||||
| June 7, 2016 |
$ | 0.9064 | $ | 0.0311 | ||||
| September 7, 2016 |
$ | 0.9098 | $ | 0.0277 | ||||
| December 7, 2016 |
$ | 0.9133 | $ | 0.0242 | ||||
| March 7, 2017 |
$ | 0.9167 | $ | 0.0208 | ||||
| June 7, 2017 |
$ | 0.9201 | $ | 0.0174 | ||||
| September 7, 2017 |
$ | 0.9236 | $ | 0.0139 | ||||
| December 7, 2017 |
$ | 0.9270 | $ | 0.0105 | ||||
| March 7, 2018 |
$ | 0.9305 | $ | 0.0070 | ||||
| June 7, 2018 |
$ | 0.9340 | $ | 0.0035 | ||||
| Indenture | Indenture for Debt Securities with The Bank of New York Mellon Trust Company, N.A. dated September 19, 2006, as supplemented by that certain Third Supplemental Indenture dated as of June 10, 2015. | |
| Public Offering Price: | $50 per Unit $400,000,000 in the aggregate (or $460,000,000 in the aggregate if the underwriters of the Units Offering exercise their over-allotment option in full). | |
| Underwriting Discount: | $1.50 per Unit $12,000,000 in the aggregate (or $13,800,000 in the aggregate if the underwriters of the Units Offering exercise their over-allotment option in full).
The underwriters of the Units Offering propose to offer the Units to dealers at the public offering price less a concession not in excess of $0.90 per Unit. | |
| Closing Date: | June 10, 2015. | |
| Lock-Up Period and Securities | 45 days; WGP Common Units, including securities convertible into, or exchangeable for WGP Common Units, or options, rights or warrants with respect to any WGP Common Units. | |
| Applicable Time: | 4:45 p.m. Eastern Time, on the date of this Terms Agreement. | |
A-5
| Estimated Net Proceeds to Anadarko from the Units Offering: | Estimated net proceeds from the sale of Units in the Units Offering, after deducting underwriting discounts and commissions and estimated offering expenses, will be approximately $387.1 million (or approximately $445.3 million if the underwriters of the Units Offering exercise their over-allotment option in full). | |
| Sole Book-Running Manager: | J.P. Morgan Securities LLC. | |
| Co-Managers: | Barclays Capital Inc. Citigroup Global Markets Inc. Credit Suisse Securities (USA) LLC Deutsche Bank Securities Inc. Goldman, Sachs & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC RBC Capital Markets, LLC Wells Fargo Securities, LLC | |
| Listing: | Anadarko will apply to list the Units on the NYSE under the symbol “AEUA,” subject to satisfaction of its minimum listing standards with respect to the Units. If approved for listing, Anadarko expects trading on the NYSE to begin within 30 calendar days after the Units are first issued. | |
| Additional Information: | R. A. Walker, the Chief Executive Officer and a director of Anadarko, is expected to purchase approximately $125,000 of WGP Common Units in connection with the WGP Common Unit Offering and approximately $125,000 stated amount of Units in connection with the Units Offering, in each case at the applicable public offering price. | |
| Other Relationships: | Affiliates of each of J.P. Morgan Securities LLC and Wells Fargo Bank, N.A. are lenders under our senior secured revolving credit facility. | |
| CUSIP for the Units: | 032511 404 | |
| ISIN for the Units: | US0325114041 | |
| CUSIP for the Purchase Contracts: | 032511 123 | |
| ISIN for the Purchase Contracts: | US0325111237 | |
| CUSIP for the Amortizing Notes: | 032511 503 | |
| ISIN for the Amortizing Notes: | US0325115030 | |
Anadarko will prepare a final term sheet relating to the Securities.
A-6
For purposes of the Underwriting Agreement, the only information furnished to Anadarko by any Underwriter for use in the Prospectus consists of the following information in the Prospectus furnished on behalf of each Underwriter:
The statements set forth in (i) the first and second sentences of the third paragraph and (ii) in the 12th and 13th under the caption “Underwriting” in the Prospectus, in each case only insofar as such statements relate to the amount of selling concessions and stabilization activities that may be undertaken by the Underwriters, constitute the only information furnished by or on behalf of the Underwriters, as such information is referred to in this Terms Agreement (including the Standard Provisions incorporated by reference herein).
For purposes of the Underwriting Agreement, the only information furnished to the Partnership by any Underwriter for use in the Partnership Prospectus consists of the following information in the Partnership Prospectus furnished on behalf of each Underwriter:
The statements set forth in eighth and ninth paragraphs under the caption “Plan of Distribution” in the Partnership Prospectus, insofar as such statements relate to stabilization activities that may be undertaken by the Underwriters, constitute the only information furnished by or on behalf of the Underwriters, as such information is referred to in this Terms Agreement (including the Standard Provisions incorporated by reference herein)
Addresses for notice:
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Subject to the terms and provisions of the above referenced Underwriting Agreement, which is incorporated herein in its entirety and made a part hereof to the same extent as if such terms and provisions had been set forth in full herein, Anadarko agrees to sell and each Underwriter severally agrees to purchase the number of Firm Securities set forth opposite its name.
| Name |
Number of Securities to be Purchased |
|||
| Sole Bookrunner: |
||||
| J.P. Morgan Securities LLC |
2,960,000 | |||
| Co-Managers: |
||||
| Barclays Capital Inc. |
560,000 | |||
| Citigroup Global Markets Inc. |
560,000 | |||
| Credit Suisse Securities (USA) LLC |
560,000 | |||
| Deutsche Bank Securities Inc. |
560,000 | |||
| Goldman, Sachs & Co. |
560,000 | |||
| Merrill Lynch, Pierce, Fenner & Smith Incorporated |
560,000 | |||
| Morgan Stanley & Co. LLC |
560,000 | |||
| RBC Capital Markets, LLC |
560,000 | |||
| Wells Fargo Securities, LLC |
560,000 | |||
|
|
|
|||
| Total |
8,000,000 | |||
|
|
|
|||
We represent that as Representative of the several Underwriters we are entitled to execute this Terms Agreement on behalf of the several Underwriters and otherwise to act as representative on their behalf. Anadarko shall be entitled to act and rely upon any request, consent, notice or agreement given by us as representative of the several Underwriters.
[Signature page follows.]
A-7
| J.P. MORGAN SECURITIES LLC | ||
| For itself and as Representative of the several Underwriters | ||
| By: | /s/ Tim Oeljeschlager | |
| Name: | Tim Oeljeschlager | |
| Title: | Executive Director | |
[Signature Page to Terms Agreement]
| Accepted: | ||
| ANADARKO PETROLEUM CORPORATION | ||
| By: | /s/ Albert L. Richey | |
| Name: | Albert L. Richey | |
| Title: | Senior Vice President, Finance and Treasurer | |
| WESTERN GAS EQUITY HOLDINGS, LLC | ||
| By: | /s/ Benjamin M. Fink | |
| Name: | Benjamin M. Fink | |
| Title: | Senior Vice President, | |
| Chief Financial Officer and Treasurer | ||
| WESTERN GAS EQUITY PARTNERS, LP | ||
| By: | Western Gas Equity Holdings, LLC | |
| By: | /s/ Benjamin M. Fink | |
| Name: | Benjamin M. Fink | |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer | |
[Signature Page to Terms Agreement]
Schedule I
Disclosure Package
| 1. | Prospectus dated November 8, 2013, as amended by the Prospectus dated June 3, 2015, filed by the Company on Form S-3/A, relating to the offering of the Securities. |
| 2. | Prospectus dated January 2, 2014 relating to the offering of Partnership Common Units by Anadarko through the Purchase Contracts. |
| 3. | Preliminary Prospectus Supplement filed by the Company on June 3, 2015 relating to the offering of the Securities. |
| 4. | Preliminary Prospectus Supplement filed by the Partnership on June 3, 2015 relating to the offering of Partnership Common Units by Anadarko through the Purchase Contracts. |
| 5. | General Use Issuer Free Writing Prospectuses: Launch Press Release filed by each of the Company and the Partnership on June 3, 2015 under Rule 433(d) of the Act. |
| 6. | General Use Issuer Free Writing Prospectuses: Pricing Press Release filed by each of the Company and the Partnership on June 4, 2015 under Rule 433(d) of the Act. |
| 7. | General Use Issuer Free Writing Prospectuses: Final Term Sheet filed by each of the Company and the Partnership on June 4, 2015 under Rule 433(d) of the Act. |
Schedule II
Company Additional Written Communication
Company presentation dated June 2015, titled “Tangible Equity Unit Offering.”
Exhibit 4.1
PURCHASE CONTRACT AGREEMENT
Dated as of June 10, 2015
among
ANADARKO PETROLEUM CORPORATION
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Purchase Contract Agent and
as Attorney-in-Fact for the Holders from time to time as provided herein
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee under the Indenture referred to herein
TABLE OF CONTENTS
| PAGE | ||||||
| ARTICLE 1 | ||||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||||||
| Section 1.01. |
Definitions |
1 | ||||
| Section 1.02. |
Compliance Certificates and Opinions |
16 | ||||
| Section 1.03. |
Notices |
17 | ||||
| Section 1.04. |
Effect of Headings and Table of Contents |
18 | ||||
| Section 1.05. |
Successors and Assigns |
18 | ||||
| Section 1.06. |
Separability Clause |
18 | ||||
| Section 1.07. |
Benefits of Agreement |
18 | ||||
| Section 1.08. |
Governing Law |
18 | ||||
| Section 1.09. |
Waiver of Jury Trial |
18 | ||||
| Section 1.10. |
Conflict with Indenture |
18 | ||||
| Section 1.11. |
Legal Holidays |
18 | ||||
| Section 1.12. |
Counterparts |
18 | ||||
| Section 1.13. |
Inspection of Agreement |
19 | ||||
| Section 1.14. |
Calculations |
19 | ||||
| Section 1.15. |
UCC |
19 | ||||
| Section 1.16. |
USA PATRIOT Act |
19 | ||||
| Section 1.17. |
FATCA |
19 | ||||
| ARTICLE 2 | ||||||
| UNIT AND PURCHASE CONTRACT FORMS | ||||||
| Section 2.01. |
Forms of Units and Purchase Contracts Generally |
20 | ||||
| Section 2.02. |
Form of Certificate of Authentication |
21 | ||||
| Section 2.03. |
Global Securities; Separation of Units. |
21 | ||||
| Section 2.04. |
Recreation of Units. |
22 | ||||
| ARTICLE 3 | ||||||
| THE UNITS AND PURCHASE CONTRACTS | ||||||
| Section 3.01. |
Amount and Denominations |
22 | ||||
| Section 3.02. |
Rights and Obligations Evidenced by the Equity-Linked Securities |
23 | ||||
| Section 3.03. |
Execution, Authentication, Delivery and Dating |
23 | ||||
| Section 3.04. |
Temporary Equity-Linked Securities |
24 | ||||
| Section 3.05. |
Registration; Registration of Transfer and Exchange |
25 | ||||
| Section 3.06. |
Book-Entry Interests |
26 | ||||
| Section 3.07. |
Notices to Holders |
27 | ||||
| Section 3.08. |
Appointment of Successor Depositary |
27 | ||||
i
| Section 3.09. |
Definitive Securities |
27 | ||||
| Section 3.10. |
Mutilated, Destroyed, Lost and Stolen Securities |
27 | ||||
| Section 3.11. |
Persons Deemed Owners |
29 | ||||
| Section 3.12. |
Cancellation |
30 | ||||
| Section 3.13. |
CUSIP Numbers |
30 | ||||
| ARTICLE 4 | ||||||
| SETTLEMENT OF THE PURCHASE CONTRACTS | ||||||
| Section 4.01. |
Settlement Rate |
31 | ||||
| Section 4.02. |
Representations and Agreements of Holders |
31 | ||||
| Section 4.03. |
Purchase Contract Settlement Fund |
32 | ||||
| Section 4.04. |
Settlement Conditions |
32 | ||||
| Section 4.05. |
Mandatory Settlement on the Mandatory Settlement Date. |
33 | ||||
| Section 4.06. |
Early Settlement |
34 | ||||
| Section 4.07. |
Early Settlement upon a Fundamental Change |
37 | ||||
| Section 4.08. |
[Reserved]. |
42 | ||||
| Section 4.09. |
[Reserved]. |
42 | ||||
| Section 4.10. |
Acceleration of Mandatory Settlement Date |
43 | ||||
| Section 4.11. |
Registration of Underlying Shares and Transfer Taxes |
43 | ||||
| Section 4.12. |
Return of Purchase Contract Settlement Fund |
43 | ||||
| Section 4.13. |
No Fractional Common Units or Shares |
44 | ||||
| ARTICLE 5 | ||||||
| ADJUSTMENTS | ||||||
| Section 5.01. |
Adjustments to the Fixed Settlement Rates |
45 | ||||
| Section 5.02. |
Reorganization Events |
55 | ||||
| Section 5.03. |
APC Anti-dilution Adjustments. |
59 | ||||
| ARTICLE 6 | ||||||
| CONCERNING THE HOLDERS OF PURCHASE CONTRACTS | ||||||
| Section 6.01. |
Evidence of Action Taken by Holders |
59 | ||||
| Section 6.02. |
Proof of Execution of Instruments and of Holding of Securities |
60 | ||||
| Section 6.03. |
Purchase Contracts Deemed Not Outstanding |
60 | ||||
| Section 6.04. |
Right of Revocation of Action Taken |
60 | ||||
| Section 6.05. |
Record Date for Consents and Waivers |
61 | ||||
| ARTICLE 7 | ||||||
| REMEDIES | ||||||
| Section 7.01. |
Unconditional Right of Holders to Receive WGP Common Units or Shares of APC Stock |
61 | ||||
| Section 7.02. |
Notice To Purchase Contract Agent; Limitation On Proceedings |
61 | ||||
ii
| Section 7.03. |
Restoration of Rights and Remedies |
62 | ||||
| Section 7.04. |
Rights and Remedies Cumulative |
62 | ||||
| Section 7.05. |
Delay or Omission Not Waiver |
62 | ||||
| Section 7.06. |
Undertaking for Costs |
62 | ||||
| Section 7.07. |
Waiver of Stay or Execution Laws |
63 | ||||
| Section 7.08. |
Control by Majority |
63 | ||||
| ARTICLE 8 | ||||||
| THE PURCHASE CONTRACT AGENT AND TRUSTEE | ||||||
| Section 8.01. |
Certain Duties and Responsibilities |
63 | ||||
| Section 8.02. |
Notice of Default |
64 | ||||
| Section 8.03. |
Certain Rights of Purchase Contract Agent |
65 | ||||
| Section 8.04. |
Not Responsible for Recitals |
66 | ||||
| Section 8.05. |
May Hold Units and Purchase Contracts |
67 | ||||
| Section 8.06. |
Money Held in Custody |
67 | ||||
| Section 8.07. |
Compensation, Reimbursement and Indemnification |
67 | ||||
| Section 8.08. |
Corporate Purchase Contract Agent Required; Eligibility |
68 | ||||
| Section 8.09. |
Resignation and Removal; Appointment of Successor |
68 | ||||
| Section 8.10. |
Acceptance of Appointment by Successor |
70 | ||||
| Section 8.11. |
Merger; Conversion; Consolidation or Succession to Business |
70 | ||||
| Section 8.12. |
Preservation of Information; Communications to Holders |
70 | ||||
| Section 8.13. |
Tax Compliance |
71 | ||||
| ARTICLE 9 | ||||||
| SUPPLEMENTAL AGREEMENTS | ||||||
| Section 9.01. |
Supplemental Agreements Without Consent of Holders |
71 | ||||
| Section 9.02. |
Supplemental Agreements with Consent of Holders |
72 | ||||
| Section 9.03. |
Execution of Supplemental Agreements |
73 | ||||
| Section 9.04. |
Effect of Supplemental Agreements |
73 | ||||
| Section 9.05. |
Reference to Supplemental Agreements |
73 | ||||
| Section 9.06. |
Notice of Supplemental Agreements |
73 | ||||
| ARTICLE 10 | ||||||
| CONSOLIDATION, MERGER, SALE, ASSIGNMENT, TRANSFER, LEASE OR CONVEYANCE | ||||||
| Section 10.01. |
Covenant Not to Consolidate, Merge, Sell, Assign, Transfer, Lease or Convey Property Except Under Certain Conditions |
74 | ||||
| Section 10.02. |
Rights and Duties of Successor Entity |
74 | ||||
| Section 10.03. |
Officers’ Certificate and Opinion of Counsel Given to Purchase Contract Agent |
74 | ||||
iii
| ARTICLE 11 | ||||||
| COVENANTS OF THE COMPANY | ||||||
| Section 11.01. |
Performance Under Purchase Contracts |
75 | ||||
| Section 11.02. |
Maintenance of Office or Agency |
75 | ||||
| Section 11.03. |
Statements of Officers of the Company as to Default; Notice of Default |
75 | ||||
| Section 11.04. |
Existence |
76 | ||||
| Section 11.05. |
Company to Reserve APC Stock |
76 | ||||
| Section 11.06. |
Covenants as to APC Stock and Listing |
76 | ||||
| Section 11.07. |
Tax Treatment |
76 | ||||
| Section 11.08. |
Foreign Reorganizations |
76 | ||||
| EXHIBITS | ||||||
| Exhibit A: Form of Unit |
A-1 | |||||
| Exhibit B: Form of Purchase Contract |
B-1 | |||||
iv
PURCHASE CONTRACT AGREEMENT, dated as of June 10, 2015 among ANADARKO PETROLEUM CORPORATION, a Delaware corporation (the “Company”), THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. acting as purchase contract agent and attorney-in-fact for the Holders of Purchase Contracts (as defined herein) from time to time (the “Purchase Contract Agent”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., acting as trustee under the Indenture (as defined herein).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Agreement and the Units and Purchase Contracts issuable hereunder.
All things necessary to make the Units and the Purchase Contracts, when such are executed by the Company and authenticated on behalf of the Holders and delivered by the Purchase Contract Agent, as provided in this Agreement, the valid obligations of the Company and to constitute this Agreement a valid agreement of the Company, in accordance with its terms, have been done. For and in consideration of the premises and the purchase of the Units (including the constituent parts thereof) by the Holders thereof, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, and nouns and pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States;
(c) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Exhibit or other subdivision; and
(d) the following terms have the meanings given to them in this Section 1.01(d):
“Acceleration Date” has the meaning set forth in Section 4.10.
“Affiliate” means, when used with reference to a specified Person, any Person directly or indirectly controlling, or controlled by or under direct or indirect common control with the Person specified.
“Agreement” or “Purchase Contract Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.
“Anadarko Reorganization Event” has the meaning set forth in Section 5.02(b).
“APC Delisting” means that the APC Stock ceases to be listed for trading on at least one of the NYSE, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors).
“APC Early Settlement Election” has the meaning set forth in Section 4.06(i)(i).
“APC Exchange Property” has the meaning set forth in Section 5.02(b).
“APC Fundamental Change Early Settlement Election” has the meaning set forth in Section 4.07(m)(i).
“APC Mandatory Settlement Election” has the meaning set forth in Section 4.05(b)(i).
“APC Reference Securities Exchange” means, as of any day, the NYSE or, if the APC Stock is not listed on the NYSE as of such day, the principal other United States national or regional securities exchange on which the APC Stock is then listed or, if the APC Stock is not then listed on a United States national or regional securities exchange, the principal other market on which the APC Stock is then listed or admitted for trading.
“APC Settlement Election” means each of an APC Mandatory Settlement Election, an APC Early Settlement Election and an APC Fundamental Change Early Settlement Election.
“APC Stock” means the common stock, par value $0.10 per share, of the Company as it existed on the date of this Agreement, subject to Section 5.02(b).
“Applicable Market Value” (i) with respect to WGP Common Units means the average of the Daily VWAPs of the WGP Common Units for the 20 consecutive Trading Days beginning on, and including, the 23rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, subject to adjustment as provided in Article 5 and (ii) with respect to APC Stock means the average of the Daily VWAPs of the APC Stock for the 20 consecutive Trading Days beginning on, and including, the 23rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, subject to adjustment as provided in Article 5.
“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
“Applicants” has the meaning set forth in Section 8.12(b).
2
“Bankruptcy Event” means the occurrence of one or more of the following events:
(a) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company under any Bankruptcy Law and if such decree or order shall have been entered more than 60 days prior to the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value is determined, such decree or order shall have continued undischarged and unstayed for a period of 60 days;
(b) a decree or order by a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of the Company or of all or substantially all of its property, or for the winding up or liquidation of its affairs, shall have been entered and if such decree or order shall have been entered more than 60 days prior to the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value is determined, such decree or order shall have continued undischarged and unstayed for a period of 60 days; or
(c) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under any Bankruptcy Law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due.
“Bankruptcy Law” means title 11 of the United States Code, as amended, or any similar foreign, federal or state law for the relief of debtors.
“Beneficial Holder” means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest as reflected on the books of the Depositary or on the books of a Person maintaining an account with the Depositary (directly as a Depositary Participant or as an indirect participant, in each case in accordance with the rules of the Depositary).
“Board of Directors” means the board of directors of the Company or any duly authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Purchase Contract Agent.
“Book-Entry Interest” means a beneficial interest in a Global Security, registered in the name of a Depositary or a nominee thereof, ownership and transfers of which shall be maintained and made through book entries by such Depositary as described in Section 3.06.
“Business Day” means any day other than a Saturday, Sunday or any day on which banking institutions in New York, New York are authorized or obligated by applicable law or executive order to close or be closed.
3
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of or in such Person’s capital stock or other equity interests, and options, rights or warrants to purchase such capital stock or other equity interests, whether now outstanding or issued after the Issue Date.
“Clause (I) Distribution” has the meaning set forth in Section 5.01(a)(iii).
“Clause (II) Distribution” has the meaning set forth in Section 5.01(a)(iii).
“Clause (III) Distribution” has the meaning set forth in Section 5.01(a)(iii).
“Clearing Agency” means an organization registered as a “Clearing Agency” pursuant to Section 17A of the Exchange Act.
“close of business” means 5:00 p.m. (New York City time).
“Code” means the Internal Revenue Code of 1986 (title 26 of the United States Code), as amended from time to time.
“Commission” means the U.S. Securities and Exchange Commission.
“Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person, and, in each case, not entitled to any preference in respect of dividends or amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of such Person.
“Company” means the Person named as the “Company” in the first paragraph of this Agreement until a successor shall have become such pursuant to Article 10, and thereafter “Company” shall mean such successor.
“Component Note” means a Note, in global form and attached to a Global Unit, that (a) shall evidence the number of Notes specified therein that are components of the Units evidenced by such Global Unit, (b) shall be registered on the security register for the Notes in the name of the Purchase Contract Agent, as attorney-in-fact of holder(s) of the Units of which such Notes form a part, and (c) shall be held by the Purchase Contract Agent as attorney-in-fact of such holder(s), together with such Global Unit, as custodian of such Global Unit for the Depositary.
“Component Purchase Contract” means a Purchase Contract, in global form and attached to a Global Unit, that (a) shall evidence the number of Purchase Contracts specified therein that are components of the Units evidenced by such Global Unit, (b) shall be registered on the Security Register in the name of the Purchase Contract Agent, as attorney-in-fact of holder(s) of the Units of which such Purchase Contract forms a part, and (c) shall be held by the Purchase Contract Agent as attorney-in-fact of such holder(s), together with such Global Unit, as custodian of such Global Unit for the Depositary.
4
“control” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Corporate Trust Office” means the designated office of the Purchase Contract Agent at which at any particular time its corporate trust business in respect of this Agreement shall be administered and which, at the date hereof, is located at 601 Travis Street, 16th Floor, Houston, Texas 77002 Attention: Corporate Trust Administration, and for purposes of Section 11.02 is located at 101 Barclay Street, New York, New York 10286, Attention: Corporate Trust Administration, or at such other address as the Purchase Contract Agent may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Purchase Contract Agent.
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Daily VWAP” (i) with respect to the WGP Common Units means, on any date of determination, the per WGP Common Unit volume-weighted average price as displayed under the heading Bloomberg VWAP on Bloomberg page WGP <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading on the relevant Trading Day until the scheduled close of trading on the relevant Trading Day (or if such volume-weighted average price is unavailable, the market price of one WGP Common Unit on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company), (ii) with respect to the APC Stock means, on any date of determination, the per share volume-weighted average price as displayed under the heading Bloomberg VWAP on Bloomberg page APC <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading on the relevant Trading Day until the scheduled close of trading on the relevant Trading Day (or if such volume-weighted average price is unavailable, the market price of one share of the APC Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company) and (iii) with respect to any Merger Common Equity means, on any date of determination, the per share volume-weighted average price as displayed under the heading Bloomberg VWAP on the applicable Bloomberg page for such Merger Common Equity in respect of the period from the scheduled open of trading on the relevant Trading Day until the scheduled close of trading on the relevant Trading Day (or if such volume-weighted average price is unavailable, the market price of one share of the Merger Common Equity on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company).
“default” means any failure to comply with terms of this Agreement or any covenant contained herein.
“Definitive Equity-Linked Security” means an Equity-Linked Security in definitive form.
5
“Definitive Security” means any Security in definitive form.
“Depositary” means a Clearing Agency that is acting as a depositary for the Equity-Linked Securities and in whose name, or in the name of a nominee of that organization, shall be registered one or more Global Securities and which shall undertake to effect book-entry transfers of the Equity-Linked Securities as contemplated by Section 3.06, Section 3.07, Section 3.08 and Section 3.09.
“Depositary Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depositary effects book-entry transfers of securities deposited with the Depositary.
“Determination Date” means each of (a) in the case of a settlement of Purchase Contracts on the Mandatory Settlement Date, the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value is determined, (b) any Early Settlement Date, (c) any Fundamental Change Early Settlement Date, and (d) any Acceleration Date.
“DTC” means The Depository Trust Company.
“DWAC System” has the meaning set forth in Section 2.03(a).
“Early Settlement” means, in respect of any Purchase Contract, that the Holder of such Purchase Contract has elected to settle such Purchase Contract early pursuant to Section 4.06 or Section 4.07, as the case may be.
“Early Settlement Date” means, for any Purchase Contract for which an Early Settlement is effected: (a) if the Company does not make any APC Early Settlement Election with respect to such Early Settlement and all conditions for effecting such Early Settlement set forth in Section 4.06(b) (including, if applicable, the condition set forth in Section 4.06(b)(ii)) are satisfied before the close of business on any Business Day, such Business Day; (b) if the Company does not make any APC Early Settlement Election with respect to such Early Settlement and all conditions for effecting such Early Settlement set forth in Section 4.06(b) (including, if applicable, the condition set forth in Section 4.06(b)(ii)) are satisfied at or after the close of business on any Business Day or at any time on a day that is not a Business Day, the Business Day next succeeding such day; and (c) if the Company makes an APC Early Settlement Election with respect to such Early Settlement, the last Trading Day of the 20 consecutive Trading Day period during which the Early Settlement Market Value of WGP Common Units and APC Stock is determined.
“Early Settlement Market Value” means, (i) with respect to WGP Common Units, the average of the Daily VWAPs of the WGP Common Units for the 20 consecutive Trading Days beginning on, and including, the second Trading Day immediately following the Early Settlement Notice Date and (ii) with respect to APC Stock, the average of the Daily VWAPs of the APC Stock for the 20 consecutive Trading Days beginning on, and including, the second Trading Day immediately following the Early Settlement Notice Date.
“Early Settlement Notice” has the meaning set forth in Section 4.06(b)(i)(A).
6
“Early Settlement Notice Date” has the meaning set forth in Section 4.06(c).
“Early Settlement Rate” means, for any Purchase Contract in respect of which Early Settlement is applicable, 90% of the Minimum Settlement Rate as of the Early Settlement Date, rounded to the nearest 1/10,000th of a WGP Common Unit, unless the Holder of such Purchase Contract has elected to settle such Purchase Contract early in connection with a Fundamental Change pursuant to Section 4.07, in which case the “Early Settlement Rate” for such Purchase Contract means the Fundamental Change Early Settlement Rate.
“Early Settlement Right” has the meaning set forth in Section 4.06(a).
“Early Settlement Value” has the meaning set forth in Section 4.06(i)(i).
“Effective Date” has the meaning set forth in Section 4.07(e).
“Equity-Linked Security” means a Unit or a Purchase Contract, as applicable.
“ERISA” has the meaning set forth in Section 4.02(iv).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any statute successor thereto, in each case as amended from time to time, together with the rules and regulations promulgated thereunder.
“Exchange Property” means each of APC Exchange Property and WGP Exchange Property.
“Ex-Date” when used with respect to any issuance, dividend or distribution, means the first date on which WGP Common Units trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question from WGP or, if applicable, from the seller of the WGP Common Units on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction, as such price is determined in good faith by the Board of Directors, as evidenced by a Board Resolution.
“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“Fixed Settlement Rate” has the meaning set forth in Section 4.01(c).
7
“Foreign Reorganization” means any merger of the Company with or into, consolidation of the Company with, or sale, assignment, transfer, lease or conveyance of all or substantially all of the Company’s properties and assets to, any Person or entity where the resulting, surviving or transferee entity (if not the Company) is an entity that is not organized and existing under the laws of the United States of America, any State thereof or the District of Columbia.
“Fundamental Change” shall be deemed to have occurred upon the occurrence of any of the following:
(a) WGP Common Units (or other common stock or other Common Equity receivable upon settlement of the Purchase Contracts, if applicable (other than, for the avoidance of doubt, APC Stock as a result of any APC Settlement Election, except in connection with any WGP Reorganization Event that results in the WGP Exchange Property being comprised of, in whole or in part, APC Stock)) cease to be listed for trading on at least one of the NYSE, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors);
(b) the consummation of any acquisition (whether by means of a liquidation, share exchange, tender offer, consolidation, recapitalization, reclassification, merger of WGP or any sale, lease or other transfer of all or substantially all of the consolidated assets of WGP and its Subsidiaries) or a series of related transactions or events pursuant to which:
(i) 90% or more of the WGP Common Units are exchanged for, converted into or constitute solely the right to receive cash, securities or other property; and
(ii) more than 10% of such cash, securities or other property does not consist of shares of common stock or other Common Equity that are, or that upon issuance will be, listed for trading on the NYSE, The NASDAQ Global Select Market or The NASDAQ Global Market;
(c) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of more than 50% of the WGP Common Units;
(d) the Company or a “group” that includes the Company within the meaning of Section 13(d) 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 90% of the WGP Common Units;
(e) any general partner of WGP ceases to be a Wholly Owned Subsidiary of the Company;
(f) WGP’s general partner(s) approve WGP’s liquidation, dissolution or termination; or
(g) in connection with any Foreign Reorganization, the earliest to occur of the public announcement of (i) the Board of Directors’ recommendation of such Foreign Reorganization, (ii) the Board of Directors’ approval of such Foreign Reorganization, and (iii) the Company’s shareholders’ approval of such Foreign Reorganization.
8
If any transaction occurs in which WGP Common Units are replaced by the securities of another entity, following completion of any related Fundamental Change Early Settlement Period (or, in the case of a transaction that would have been a Fundamental Change but for clause (b)(ii) of the definition thereof, following the effective date of such transaction) references to WGP in this definition shall instead be references to such other entity.
“Fundamental Change Early Settlement” means, in respect of any Purchase Contract, that the Holder of such Purchase Contract has elected to settle such Purchase Contract early pursuant to Section 4.07.
“Fundamental Change Early Settlement Date” means, for any Purchase Contract for which a Fundamental Change Early Settlement is effected: (a) in the case of a Fundamental Change described in clause (b) of the definition of “Fundamental Change” in which holders of WGP Common Units receive only cash in exchange for their WGP Common Units in such Fundamental Change, the Business Day on which the Holder of such Purchase Contract complies with the requirements for exercising such Fundamental Change Early Settlement Right set forth in Section 4.07(c)(i) (or, if such Holder complies with such requirements at or after the close of business on any Business Day or at any time on a day that is not a Business Day during the Fundamental Change Early Settlement Period, the next succeeding Business Day) and (b) in all other cases, the later of (1) the last day of the Fundamental Change Early Settlement Period for any Holder who complies with the requirements for exercising the Fundamental Change Early Settlement Right set forth in Section 4.07(c)(i) in respect of its Purchase Contracts prior to the close of business on such day and (2) if the Company is to settle the relevant Purchase Contracts in WGP Common Units and a Registration Statement is required pursuant to Section 4.07(c)(ii) in respect of such settlement, the date on which an effective Registration Statement with respect to the WGP Common Units and other securities, if any, deliverable upon settlement of such Purchase Contracts is available.
“Fundamental Change Early Settlement Period” has the meaning set forth in Section 4.07(a).
“Fundamental Change Early Settlement Rate” has the meaning set forth in Section 4.07(e).
“Fundamental Change Early Settlement Right” has the meaning set forth in Section 4.07(a).
“Fundamental Change Early Settlement Value” has the meaning set forth in Section 4.07(m)(i).
“Fundamental Change Market Value” means, for any Purchase Contract in respect of which Section 4.07(m) is applicable, the average of the Daily VWAPs of the APC Stock for the 20 consecutive Trading Days beginning on, and including, the third Trading Day immediately following the Effective Date of the applicable Fundamental Change.
9
“Global Note” means a Note, as defined in the Indenture, in global form that (a) shall evidence the number of Separate Notes specified therein, (b) shall be registered on the security register for the Notes in the name of the Depositary or its nominee, and (c) shall be held by the Trustee as custodian for the Depositary.
“Global Purchase Contract” means a Purchase Contract in global form that (a) shall evidence the number of Separate Purchase Contracts specified therein, (b) shall be registered on the Security Register in the name of the Depositary or its nominee, and (c) shall be held by the Purchase Contract Agent as custodian for the Depositary.
“Global Security” means a Global Unit, a Global Purchase Contract or a Global Note, as applicable.
“Global Unit” means a Unit in global form that (a) shall evidence the number of Units specified therein, (b) shall be registered on the Security Register in the name of the Depositary or its nominee, (c) shall include, as attachments thereto, a Component Note and a Component Purchase Contract, evidencing, respectively, a number of Notes and a number of Purchase Contracts, in each case, equal to the number of Units evidenced by such Unit in global form, and (d) shall be held by the Purchase Contract Agent as custodian for the Depositary.
“Holder” means, with respect to a Unit or Purchase Contract, the Person in whose name the Unit or Purchase Contract, as the case may be, is registered in the Security Register, and with respect to a Note, the Person in whose name the Note is registered as provided for in the Indenture; provided, however, that in determining whether the Holders of the requisite number of Units or Purchase Contracts, as the case may be, have voted on any matter, then for the purpose of such determination only (and not for any other purpose hereunder), if the Units or Purchase Contracts, as the case may be, remain in the form of one or more Global Securities and if the Depositary that is the registered holder of such Global Security has sent an omnibus proxy assigning voting rights to the Depositary Participants to whose accounts the Units or Purchase Contracts, as the case may be, are credited on the related record date, the term “Holder” shall mean such Depositary Participant acting at the direction of the Beneficial Holders.
“Indenture” means the Indenture for Debt Securities, dated as of September 19, 2006, between the Company and the Trustee (including any provisions of the TIA that are deemed incorporated therein), as supplemented by the Third Supplemental Indenture, dated as of June 10, 2015, between the Company and the Trustee, pursuant to which the Notes will be issued.
“Initial Dividend Threshold” has the meaning set forth in Section 5.01(a)(iv).
“Installment Payment” has the meaning set forth in the Indenture.
“Installment Payment Date” has the meaning set forth in the Indenture.
“Issue Date” means June 10, 2015.
“Issuer Order” means a written request or order signed in the name of the Company by any two of the Chairman of the Board, a Vice Chairman of the Board, a President, a Vice
10
President, the Treasurer or an Assistant Treasurer, the Secretary or an Assistant Secretary, or any other officer or officers of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Purchase Contract Agent from time to time, and delivered to the Purchase Contract Agent and/or the Trustee.
“Mandatory Settlement Date” means the Scheduled Mandatory Settlement Date, subject to acceleration pursuant to Section 4.10; provided that, if one or more of the 20 Scheduled Trading Days beginning on, and including, the 23rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date is not a Trading Day, the “Mandatory Settlement Date” shall be postponed until the third Scheduled Trading Day immediately following the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value of WGP Common Units is determined.
“Mandatory Settlement Value” has the meaning set forth in Section 4.05(b)(i).
“Market Disruption Event” means (a) a failure by the WGP Reference Securities Exchange (or, if the Company has made an APC Settlement Election, any Reference Securities Exchange) to open for trading during its regular trading session, (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding permitted limits or otherwise) in WGP Common Units or in any options contracts or future contracts relating to WGP Common Units or (c) only if the Company has made an APC Settlement Election, the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding permitted limits or otherwise) in the APC Stock or in any options contracts or future contracts relating to the APC Stock.
“Market Value” with respect to a Unit of Exchange Property has the meaning set forth in Section 5.02(c).
“Maximum Settlement Rate” has the meaning set forth under Section 4.01(b)(iii), subject to adjustment pursuant to the terms of Article 5.
“Merger Common Equity” has the meaning set forth in Section 5.02(g)(i).
“Merger Valuation Percentage” for any WGP Reorganization Event shall be equal to (x) the arithmetic average of the Daily VWAPs of one share of the Merger Common Equity over the relevant Merger Valuation Period, divided by (y) the arithmetic average of the Daily VWAPs of one WGP Common Unit over the relevant Merger Valuation Period.
“Merger Valuation Period” for any WGP Reorganization Event means the five consecutive Trading Day period immediately preceding, but excluding, the effective date for such WGP Reorganization Event.
“Minimum Settlement Rate” has the meaning set forth under Section 4.01(b)(i), subject to adjustment pursuant to the terms of Article 5.
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“Minimum Unit Price” has the meaning set forth under Section 4.07(g)(iii).
“Notes” means the series of notes designated as the 1.50% Senior Amortizing Notes due June 7, 2018 to be issued by the Company under the Indenture, and “Note” means each note of such series having an initial principal amount of $10.9507.
“NYSE” means the New York Stock Exchange, Inc.
“Officers’ Certificate” means a certificate signed by any two of the following: the Chairman of the Board, a Vice Chairman of the Board, a President, a Vice President, the Treasurer or an Assistant Treasurer, the Secretary or an Assistant Secretary, or any other officer or officers of the Company designated in a writing by or pursuant to authority of the Board of Directors and delivered to the Purchase Contract Agent from time to time. Each such certificate shall include the statements provided for in Section 1.02 if and to the extent required by the provisions of such Section 1.02.
“open of business” means 9:00 a.m. (New York City time).
“Opinion of Counsel” means a written opinion of counsel of the Company, who may be an employee of or counsel for the Company. Each such opinion shall include the statements provided for in Section 1.02 if and to the extent required by the provisions of such Section 1.02.
“Outstanding Purchase Contracts” means, subject to the provisions of Section 6.03, as of the date of determination, all Purchase Contracts theretofor executed, authenticated on behalf of the Holder and delivered under this Agreement (including, for the avoidance of doubt, Purchase Contracts held as a component of Units and Separate Purchase Contracts), except:
(a) Purchase Contracts theretofor cancelled by the Purchase Contract Agent or delivered to the Purchase Contract Agent for cancellation or deemed cancelled pursuant to the provisions of this Agreement; and
(b) Purchase Contracts in exchange for or in lieu of which other Purchase Contracts have been executed, authenticated on behalf of the Holder and delivered pursuant to this Agreement, other than any such Purchase Contract in respect of which there shall have been presented to the Purchase Contract Agent proof satisfactory to it that such Purchase Contract is held by a protected purchaser in whose hands the Purchase Contracts are valid obligations of the Company.
“Participant” has the meaning set forth in Section 2.03(a).
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Prospectus” means the prospectus relating to the WGP Common Units or any securities deliverable in connection with an Early Settlement pursuant to Section 4.06 or a Fundamental Change Early Settlement pursuant to Section 4.07, in the form in which first filed, or transmitted for filing, with the Commission after the effective date of the Registration Statement pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein as of the date of such prospectus.
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“Prospectus Supplement” means the preliminary prospectus supplement of the Company dated June 3, 2015, as supplemented and/or amended by the pricing term sheet dated June 4, 2015, relating to the offering and sale of the Units.
“Purchase Contract” means a prepaid equity purchase contract obligating the Company to deliver WGP Common Units, subject to the Company’s ability to settle such purchase contract in shares of APC Stock, on the terms and subject to the conditions set forth herein.
“Purchase Contract Agent” means the Person named as the “Purchase Contract Agent” in the first paragraph of this Agreement until a successor Purchase Contract Agent shall have become such pursuant to Article 8, and thereafter “Purchase Contract Agent” shall mean such Person.
“Purchase Contract Settlement Fund” has the meaning set forth in Section 4.03.
“Record Date” means, when used with respect to any dividend, distribution or other transaction or event in which the holders of WGP Common Units have the right to receive any cash, securities or other property or in which WGP Common Units are exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the WGP Common Units entitled to receive such cash, securities or other property (whether such date is fixed by WGP’s general partner’s board of directors or by statute, contract or otherwise).
“Reference Price” means $58.20, subject to adjustment pursuant to Section 5.01(e).
“Reference Securities Exchange” means each of the APC Reference Securities Exchange and the WGP Reference Securities Exchange.
“Registration Statement” means a WGP registration statement under the Securities Act covering, inter alia, the securities deliverable by the Company in connection with an Early Settlement on the applicable Settlement Date under Section 4.06 or a Fundamental Change Early Settlement on the applicable Settlement Date under Section 4.07, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement, and any post-effective amendments thereto.
“Reorganization Event” means each of an Anadarko Reorganization Event and a WGP Reorganization Event.
“Responsible Officer” means any officer of the Purchase Contract Agent with direct responsibility for the administration of this Agreement, and also means, with respect to a particular matter arising under this Agreement, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Scheduled Mandatory Settlement Date” means June 7, 2018.
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“Scheduled Trading Day” is a day that is scheduled to be a Trading Day on the WGP Reference Securities Exchange (or, if the Company has made an APC Settlement Election, each Reference Securities Exchange). If WGP Common Units (or, if the Company has made an APC Settlement Election, either WGP Common Units or the APC Stock) are not listed or admitted for trading on any U.S. national or regional securities exchange or other market, “Scheduled Trading Day” means a Business Day.
“Securities Act” means the Securities Act of 1933, as amended, and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder.
“Security” means a Unit, a Purchase Contract or a Note, as applicable.
“Security Register” has the meaning set forth in Section 3.05.
“Security Registrar” has the meaning set forth in Section 3.05.
“Separate Note” has the meaning set forth in Section 2.03(a).
“Separate Purchase Contract” has the meaning set forth in Section 2.03(a).
“Settlement Date” means any of the Mandatory Settlement Date or the third Business Day immediately following any Early Settlement Date or Fundamental Change Early Settlement Date.
“Settlement Rate” has the meaning set forth in Section 4.01(b).
“Share Cap” means 4.0 shares of APC Stock, subject to Section 5.03(a).
“Similar Laws” has the meaning set forth in Section 4.02(iv).
“Spin-Off” means a dividend or other distribution to all or substantially all holders of WGP Common Units consisting of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of WGP that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange.
“Stated Amount” means $50.
“Subsidiary” means, with respect to any Person, any other Person a majority of the combined voting power of the total outstanding ownership interests in which is, at the time of determination, beneficially owned or held, directly or indirectly, by such Person and/or one or more Subsidiaries of such Person. For this purpose, “voting power” means power to vote in an ordinary election of directors (or, in the case of a Person that is not a corporation, ordinarily to appoint or approve the appointment of Persons holding similar positions), whether at all times or only as long as no senior class of ownership interests has such voting power by reason of any contingency.
“Tender Offer Expiration Date” has the meaning set forth in Section 5.01(a)(v).
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“Tender Offer Expiration Time” has the meaning set forth in Section 5.01(a)(v).
“Threshold Appreciation Price” means, on any date of determination, an amount equal to the Stated Amount, divided by the Minimum Settlement Rate as of such date of determination (such quotient rounded to the nearest $0.0001). The Threshold Appreciation Price shall initially be $69.8422.
“TIA” means the Trust Indenture Act of 1939, as amended from time to time.
“Trading Day” means a day on which (a) there is no Market Disruption Event, (b) trading in WGP Common Units generally occurs on the WGP Reference Securities Exchange and (c) only if the Company has made an APC Settlement Election, trading in APC Stock generally occurs on the APC Reference Securities Exchange. If WGP Common Units (or, if the Company has made an APC Settlement Election, either WGP Common Units or APC Stock) are not listed or admitted for trading on any U.S. national or regional securities exchange or other market, “Trading Day” means a Business Day.
“Trigger Event” has the meaning set forth in Section 5.01(a)(iii).
“Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee under the Indenture, until a successor replaces it in accordance with the applicable provisions of the Indenture and thereafter means the successor serving thereunder.
“Underwriters” has the meaning set forth in the Underwriting Agreement.
“Underwriting Agreement” means the Underwriting Agreement, dated as of June 4, 2015, between the Company and the Underwriters named therein relating to the Units.
“Unit” means the collective rights of a Holder of a unit consisting of a single Purchase Contract and a single Note prior to separation pursuant Section 2.03 or subsequent to recreation pursuant to Section 2.04.
“Unit of APC Exchange Property” has the meaning set forth in Section 5.02(b).
“Unit of Exchange Property” means each of a Unit of APC Exchange Property and a Unit of WGP Exchange Property.
“Unit of WGP Exchange Property” has the meaning set forth in Section 5.02(a).
“Unit Price” has the meaning set forth in Section 4.07(e).
“WGP” means Western Gas Equity Partners, LP.
“WGP Common Units” means the common units representing limited partner interests in WGP, as they existed on the date of this Agreement, subject to Section 5.02(a).
“WGP Exchange Property” has the meaning set forth in Section 5.02(a).
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“WGP Reference Securities Exchange” means, as of any day, the NYSE or, if WGP Common Units are not listed on the NYSE as of such day, the principal other United States national or regional securities exchange on which WGP Common Units are then listed or, if WGP Common Units are not then listed on a United States national or regional securities exchange, the principal other market on which WGP Common Units are then listed or admitted for trading.
“WGP Reorganization Event” has the meaning set forth in Section 5.02(a).
“Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “a majority” in the definition of “Subsidiary” shall be deemed replaced by a reference to “all”.
Section 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Purchase Contract Agent and/or Trustee to take any action in accordance with any provision of this Agreement, the Company shall furnish to the Purchase Contract Agent and/or Trustee, as applicable, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.
Every Officers’ Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate,
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statement or opinion of counsel may be based, insofar as it relates to factual matters relating to information that is in the possession of the Company, upon the certificate, statement or opinion of or representations by an officer or officers of the Company, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is independent.
Section 1.03. Notices. Any notice or demand which by any provision of this Agreement is required or permitted to be given or served by the Purchase Contract Agent or by the Holders to or on the Company may be given or served by being deposited postage prepaid, first class mail (except as otherwise specifically provided herein) addressed (until another address of the Company is filed by the Company with the Purchase Contract Agent) to Anadarko Petroleum Corporation, 1201 Lake Robbins Dr., The Woodlands, Texas 77380, Attention: General Counsel. Any notice, direction, request or demand by the Company or any Holder to or upon the Purchase Contract Agent or the Trustee shall be deemed to have been sufficiently given or served by being deposited postage prepaid, first class mail (except as otherwise specifically provided herein) addressed (until another address of the Purchase Contract Agent or Trustee is filed by the Purchase Contract Agent or Trustee with the Company) to The Bank of New York Mellon Trust Company, N.A., 601 Travis Street, 16th Floor, Houston, Texas 77002 Attention: Corporate Trust Administration.
Where this Agreement provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security Register; provided that, in the case of Global Units and Global Purchase Contracts, notice may be given in accordance with the Applicable Procedures of the Depositary. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Purchase Contract Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Company when such notice is required to be given pursuant to any provision of this Agreement, then any manner of giving such notice as shall be reasonably satisfactory to the Purchase Contract Agent shall be deemed to be sufficient notice.
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Section 1.04. Effect of Headings and Table of Contents. The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.05. Successors and Assigns. All covenants and agreements in this Agreement by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.06. Separability Clause. In case any provision in this Agreement or in the Units or the Purchase Contracts shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
Section 1.07. Benefits of Agreement. Nothing in this Agreement, the Units or the Purchase Contracts, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and, to the extent provided hereby, the Holders, any benefit or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be beneficiaries of this Agreement and shall be bound by all of the terms and conditions hereof and of the Purchase Contracts by their acceptance of delivery of such Purchase Contracts.
Section 1.08. Governing Law. This Agreement, the Units and the Purchase Contracts and the rights and obligations of the parties hereto and thereto, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York.
Section 1.09. Waiver of Jury Trial. The Company, the Purchase Contract Agent and the Trustee each waive its respective rights to trial by jury in any action or proceeding arising out of or related to the Purchase Contracts, this Agreement or the transactions contemplated hereby, to the extent permitted by law.
Section 1.10. Conflict with Indenture. To the extent that any provision of this Purchase Contract Agreement relating to or affecting the Notes conflicts with or is inconsistent with the Indenture, the Indenture shall govern.
Section 1.11. Legal Holidays. In any case where any Settlement Date shall not be a Business Day, notwithstanding any other provision of this Agreement or the Purchase Contracts, the settlement of the Purchase Contracts shall not be effected on such date, but instead shall be effected on the next succeeding Business Day with the same force and effect as if made on such Settlement Date, and no interest or other amounts shall accrue or be payable by the Company or to any Holder in respect of such delay.
Section 1.12. Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu of the original Agreement for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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Section 1.13. Inspection of Agreement. A copy of this Agreement shall be available, upon reasonable notice to the Company, at all reasonable times during normal business hours at Anadarko Petroleum Corporation, 1201 Lake Robbins Dr., The Woodlands, Texas 77380 for inspection by any Holder or Beneficial Holder; provided that any such Holder or Beneficial Holder may make no more than two such inspections per calendar year.
Section 1.14. Calculations. The performance of any calculations to be made hereunder shall be the sole obligation of the Company, and neither the Purchase Contract Agent nor the Trustee shall have any obligation to make such calculations. These calculations include, but are not limited to, determination of the applicable Settlement Rate, the Fixed Settlement Rates, the Early Settlement Rate, the Fundamental Change Early Settlement Rate, the Applicable Market Value, the Early Settlement Market Value, the Fundamental Change Market Value, the Market Value and the Daily VWAPs, as the case may be. All such calculations made by the Company or its agent hereunder shall be made in good faith and, absent manifest error, shall be final and binding on the Purchase Contract Agent, the Trustee, each Paying Agent and the Holders. For any calculations to be made by the Company or its agent hereunder, the Company shall provide a schedule of such calculations to the Purchase Contract Agent and the Trustee, and each of the Purchase Contract Agent and the Trustee shall be entitled to conclusively rely upon the accuracy of the calculations by the Company or its agent without independent verification, shall have no liability with respect thereto and shall have no liability to the Holders for any loss any of them may incur in connection with no independent verification having been done.
Section 1.15. UCC. Each Purchase Contract (whether or not included in a Unit) is a security governed by Article 8 of the Uniform Commercial Code as in effect in the State of New York on the date hereof.
Section 1.16. USA PATRIOT Act. The Company acknowledges that in accordance with Section 326 of the USA PATRIOT Act, the Purchase Contract Agent and the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Purchase Contract Agent or the Trustee. The parties to this Agreement agree that they will provide the Purchase Contract Agent and the Trustee with such information as they may request in order for the Purchase Contract Agent and the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 1.17. FATCA. In order for the Purchase Contract Agent and the Trustee to comply with FATCA, the Company agrees (i) to use commercially reasonable efforts to provide to the Purchase Contract Agent and the Trustee sufficient information about transactions (including any modification to the terms of such transactions) relating to the Securities that is reasonably requested by the Purchase Contract Agent and the Trustee so that the Purchase Contract Agent and the Trustee can determine whether they have tax related obligations under FATCA, and (ii) that the Purchase Contract Agent and the Trustee shall be entitled to make any withholding or deduction from payments under this Agreement to the extent necessary to comply with FATCA. The terms of this Section 1.17 shall survive the satisfaction and discharge of this Agreement.
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ARTICLE 2
UNIT AND PURCHASE CONTRACT FORMS
Section 2.01. Forms of Units and Purchase Contracts Generally. (a) The Units and Purchase Contracts shall be in substantially the forms set forth in Exhibit A and Exhibit B hereto, respectively, which shall be incorporated in and made a part of this Purchase Contract Agreement, with such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Units or Purchase Contracts, as the case may be, are (or may in the future be) listed or any depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Units and Purchase Contracts, as the case may be, as evidenced by their execution thereof.
(b) The Units and Purchase Contracts shall be issuable only in registered form and only in denominations of a single Unit or Purchase Contract, as the case may be, and any integral multiple thereof.
(c) The Units will initially be issued in the form of one or more fully registered Global Units as set forth in Section 3.06. The Purchase Contracts will initially be issued as Component Purchase Contracts substantially in the form of Attachment 3 to the form of Global Unit attached as Exhibit A hereto, and will be attached to the related Global Unit and registered in the name of The Bank of New York Mellon Trust Company, N.A., as attorney-in-fact of the holder(s) of such Global Unit.
(d) Definitive Securities shall be printed, lithographed or engraved with steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing the Units or Purchase Contracts, as the case may be, evidenced by such Definitive Securities, consistent with the provisions of this Agreement, as evidenced by their execution thereof.
(e) Every Global Unit and Global Purchase Contract executed, authenticated on behalf of the Holders and delivered hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL [UNIT / PURCHASE CONTRACT] WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (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.
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UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.”
Section 2.02. Form of Certificate of Authentication. The form of certificate of authentication of the Units and Purchase Contracts shall be in substantially the form set forth in the form of Unit or form of Purchase Contract, respectively, attached hereto. Unless the certificate of authentication has been executed by the Purchase Contract Agent by manual signature, the Unit or Purchase Contract, as the case may be, shall not be entitled to any benefit under this Agreement or be valid or obligatory for any purpose.
Section 2.03. Global Securities; Separation of Units.
(a) On any Business Day during the period beginning on, and including, the Business Day immediately following the Issue Date to, but excluding, the third Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, a Holder or Beneficial Holder of a Unit may separate such Unit into its constituent Purchase Contract and Note (each such separated Purchase Contract and separated Note, a “Separate Purchase Contract” and “Separate Note,” respectively), which will thereafter trade under their respective CUSIP numbers (032511 123) and (032511 503), and that Unit will cease to exist. Beneficial interests in a Unit, and after separation, the Separate Purchase Contract and Separate Note, will be shown on and transfers will be effected through direct or indirect participants in DTC. Beneficial interests in Units, Separate Purchase Contracts and Separate Notes will be evidenced by Global Units, Global Purchase Contracts and Global Notes, respectively. In order to separate a Unit into its component parts, a Beneficial Holder must deliver written instruction to the broker or other direct or indirect participant (the “Participant”) through which it holds an interest in such Unit to notify DTC through DTC’s Deposit/Withdrawal at Custodian System (the “DWAC System”) of such Beneficial Holder’s election to separate such Unit, following which the Purchase Contract Agent or Trustee, as applicable, shall register (i) a decrease in the number of Units represented by the Global Unit and the number of Purchase Contracts and Notes represented by the Component Purchase Contract and the Component Note attached to the Global Unit as Attachments 3 and 4, respectively, as set forth in Schedule A to each such attachment, and (ii) a corresponding increase in the number of Purchase Contracts and Notes represented by the Global Purchase Contract and the Global Note, respectively. If, however, such Unit is in the form of a Definitive Security in accordance with Section 3.09, the Holder thereof must deliver to the Purchase Contract Agent such Unit, together with a separation notice, in the form set forth in Attachment 1 to the form of Unit attached hereto as Exhibit A. Upon the receipt of such separation notice, the Company shall promptly cause delivery, in accordance with the delivery instructions set forth in such separation notice, of one Separate Purchase Contract and one Separate Note for each such Unit. Separate Purchase Contracts and Separate Notes will be transferable independently from each other.
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(b) Holders that elect to separate the Note and related Purchase Contract in accordance with this Section 2.03 shall be responsible for any fees or expenses payable in connection with such separation, and neither the Company, the Purchase Contract Agent nor the Trustee shall be liable for any such fees or expenses.
Section 2.04. Recreation of Units.
(a) On any Business Day during the period beginning on, and including, the Business Day immediately following the Issue Date to, but excluding, the third Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, a Holder or Beneficial Holder of a Separate Purchase Contract and a Separate Note may recreate a Unit (which will thereafter trade under the CUSIP number (032511 404) for the Units), and each such Separate Purchase Contract and Separate Note will cease to exist. In order to recreate a Separate Purchase Contract and Separate Note into a Unit, a Beneficial Holder must deliver written instruction to the Participant through which it holds an interest in such Separate Purchase Contract and Separate Note to notify DTC through the DTC’s DWAC System of such Beneficial Holder’s election to recreate a Unit, following which the Purchase Contract Agent or Trustee, as applicable, shall register (i) an increase in the number of Units represented by the Global Unit and the number of Purchase Contracts and Notes represented by the Component Purchase Contract and the Component Note attached to the Global Unit as Attachments 3 and 4, respectively, as set forth in Schedule A to each such attachment, and (ii) a corresponding decrease in the number of Purchase Contracts and Notes represented by the Global Purchase Contract and Global Note, respectively. If, however, such Separate Purchase Contract and Separate Note are in the form of Definitive Securities, the Holder thereof must deliver to the Purchase Contract Agent such Definitive Securities, together with a recreation notice, in the form set forth in Attachment 2 to the form of Unit attached hereto as Exhibit A. Upon the receipt of such recreation notice, the Company shall promptly cause delivery, in accordance with the delivery instructions set forth in such recreation notice, of one Unit in definitive form for such Definitive Securities.
(b) Holders that elect to recreate Units in accordance with this Section 2.04 shall be responsible for any fees or expenses payable in connection with such recreation, and neither the Company, the Purchase Contract Agent nor the Trustee shall be liable for any such fees or expenses.
ARTICLE 3
THE UNITS AND PURCHASE CONTRACTS
Section 3.01. Amount and Denominations. The aggregate number of Units and Separate Purchase Contracts evidenced by Equity-Linked Securities executed, authenticated on behalf of the Holders and delivered hereunder is limited to 8,000,000 (as increased by a number equal to the aggregate number of additional Units, if any, purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement), except for Units and Separate Purchase Contracts executed, authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of, other Units and Separate Purchase Contracts pursuant to Section 3.04, Section 3.05, Section 3.10 or Section 9.05.
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Equity-Linked Securities that are not in the form of Global Securities shall be issuable in denominations of one Equity-Linked Security and integral multiples in excess thereof.
Section 3.02. Rights and Obligations Evidenced by the Equity-Linked Securities. Each Equity-Linked Security shall evidence the number of Units or Separate Purchase Contracts, as the case may be, specified therein, with (a) each such Unit representing the rights and obligations of the Holder thereof and of the Company under one Purchase Contract, and the rights and obligations of the Holder thereof and of the Company under one Note, and (b) each such Separate Purchase Contract representing the rights and obligations of the Holder thereof and of the Company under one Separate Purchase Contract. In the case of a Unit, the Holder of such Unit shall, for all purposes hereunder and under the Indenture, be deemed to be the Holder of the Note and Purchase Contract that are components of such Unit.
If the Company has not made an APC Settlement Election, prior to the close of business on (x) the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value of WGP Common Units is determined with respect to any Purchase Contract or (y) if applicable, any earlier Determination Date with respect to such Purchase Contract (in each case, whether such Purchase Contract is held as a component of a Unit or as a Separate Purchase Contract), such Purchase Contract shall not entitle the Holder thereof to any of the rights of a holder of WGP Common Units, including, without limitation, the right to vote or receive any dividends or other distributions or to consent or to receive notice as a holder of WGP Common Units in respect of the meetings of holders of WGP Common Units or for the election of directors for any other matter, or any other rights whatsoever as a holder of WGP Common Units.
If the Company has made an APC Settlement Election, prior to the close of business on (x) the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value of WGP Common Units and APC Stock is determined with respect to any Purchase Contract or (y) if applicable, any earlier Determination Date with respect to such Purchase Contract (in each case, whether such Purchase Contract is held as a component of a Unit or as a Separate Purchase Contract), the shares of APC Stock issuable upon settlement of such Purchase Contract shall not be outstanding, and such Purchase Contract shall not entitle the Holder thereof to any of the rights of a holder of APC Stock, including, without limitation, the right to vote or receive any dividends or other distributions or to consent or to receive notice as a shareholder in respect of the meetings of shareholders or for the election of directors for any other matter, or any other rights whatsoever as a shareholder of the Company.
Section 3.03. Execution, Authentication, Delivery and Dating. Upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Company may deliver Equity-Linked Securities executed by the Company and the Purchase Contract Agent as attorney-in-fact for the Holders of Purchase Contracts from time to time (in the case of Purchase Contracts), to the Purchase Contract Agent and Trustee, if applicable, for authentication on behalf of the Holders and delivery, together with the Issuer Order for authentication of such Equity-Linked Securities, and the Purchase Contract Agent and Trustee, if applicable, in accordance with such Issuer Order shall authenticate on behalf of the Holders and deliver such Equity-Linked Securities.
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The Equity-Linked Securities shall be executed on behalf of the Company by any authorized officer of the Company and in the case of the Purchase Contracts, shall be executed on behalf of the Holders by any authorized officer of the Purchase Contract Agent as attorney-in-fact for the Holders of Purchase Contracts from time to time. The signature of any such officer on the Equity-Linked Securities may be manual or facsimile.
Equity-Linked Securities bearing the manual or facsimile signature of an individual who was at the time of such signing a proper officer of the Company or, in the case of the Purchase Contracts, the Purchase Contract Agent, shall bind the Company and the Holders of Purchase Contracts, as the case may be, notwithstanding that such individual has ceased to hold such offices prior to the authentication and delivery of such Equity-Linked Securities or did not hold such offices at the date of issuance of such Equity-Linked Securities.
Each Equity-Linked Security shall be dated the date of its authentication.
No Equity-Linked Security shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Equity-Linked Security a certificate of authentication substantially in the form provided for herein executed by an authorized officer of the Purchase Contract Agent and Trustee (if applicable) by manual or facsimile signature, and such certificate upon any Equity-Linked Security shall be conclusive evidence, and the only evidence, that such Equity-Linked Security has been duly authenticated and delivered hereunder.
Section 3.04. Temporary Equity-Linked Securities. Pending the preparation of Definitive Equity-Linked Securities, the Company shall execute and deliver to the Purchase Contract Agent and, in the case of Units, Trustee, and the Purchase Contract Agent and, if applicable, Trustee shall authenticate on behalf of the Holders, and deliver, in lieu of such Definitive Equity-Linked Securities, temporary Equity-Linked Securities that are in substantially the form set forth in Exhibit A or Exhibit B hereto, as the case may be, with such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Units or Separate Purchase Contracts, as the case may be, are listed, or as may, consistently herewith, be determined by the officers of the Company executing such Equity-Linked Securities, as evidenced by their execution of the Equity-Linked Securities.
If temporary Equity-Linked Securities are issued, the Company will cause Definitive Equity-Linked Securities to be prepared without unreasonable delay. After the preparation of Definitive Equity-Linked Securities, the temporary Equity-Linked Securities shall be exchangeable for Definitive Equity-Linked Securities upon surrender of the temporary Equity-Linked Securities at the Corporate Trust Office, at the expense of the Company and without charge to the Holder or the Purchase Contract Agent. Upon surrender for cancellation of any one or more temporary Equity-Linked Securities, the Company shall execute and deliver to the Purchase Contract Agent and Trustee, and the Purchase Contract Agent and, if applicable, the Trustee shall authenticate on behalf of the Holder, and deliver in exchange therefor, one or more
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Definitive Equity-Linked Securities of like tenor and denominations and evidencing a like number of Units or Separate Purchase Contracts, as the case may be, as the temporary Equity-Linked Security or Equity-Linked Securities so surrendered. Until so exchanged, the temporary Equity-Linked Securities shall in all respects evidence the same benefits and the same obligations with respect to the Units or Separate Purchase Contracts, as the case may be, evidenced thereby as Definitive Equity-Linked Securities.
Section 3.05. Registration; Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office a register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Equity-Linked Securities and of transfers of Equity-Linked Securities. The Purchase Contract Agent is hereby initially appointed Security Registrar (the “Security Registrar”) for the purpose of registration of Equity-Linked Securities and transfers of Equity-Linked Securities as provided herein. The Security Registrar shall record separately the registration and transfer of the Equity-Linked Securities evidencing Units and Separate Purchase Contracts.
Upon surrender for registration of transfer of any Equity-Linked Security at the Corporate Trust Office, the Company shall execute and deliver to the Purchase Contract Agent and Trustee, if applicable, and the Purchase Contract Agent and Trustee, if applicable, shall authenticate on behalf of the designated transferee or transferees, and deliver, in the name of the designated transferee or transferees, one or more new Equity-Linked Securities of any authorized denominations, of like tenor, and evidencing a like number of Units or Separate Purchase Contracts, as the case may be.
At the option of the Holder, Equity-Linked Securities may be exchanged for other Equity-Linked Securities, of any authorized numbers and evidencing a like number of Units or Separate Purchase Contracts, as the case may be, upon surrender of the Equity-Linked Securities to be exchanged at the Corporate Trust Office. Whenever any Equity-Linked Securities are so surrendered for exchange, the Company shall execute and deliver to the Purchase Contract Agent and Trustee, and the Purchase Contract Agent and, in the case of Units, the Trustee shall authenticate on behalf of the Holder, and deliver the Equity-Linked Securities which the Holder making the exchange is entitled to receive.
All Equity-Linked Securities issued upon any registration of transfer or exchange of an Equity-Linked Security shall evidence the ownership of the same number of Units or Separate Purchase Contracts, as the case may be, and be entitled to the same benefits and subject to the same obligations, under this Agreement as the Units or Separate Purchase Contracts, as the case may be, evidenced by the Equity-Linked Security surrendered upon such registration of transfer or exchange.
Every Equity-Linked Security presented or surrendered for registration of transfer or exchange shall (if so required by the Purchase Contract Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Purchase Contract Agent duly executed by the Holder thereof, or its attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or exchange of an Equity-Linked Security, but the Company or the Purchase Contract Agent on behalf of the Company may require payment from the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Equity-Linked Securities, other than any exchanges pursuant to Section 3.06 and Section 9.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent and, in the case of Units, the Trustee shall not be obligated to authenticate on behalf of the Holder or deliver any Equity-Linked Security in exchange for any other Equity-Linked Security presented or surrendered for registration of transfer or for exchange on or after the third Business Day immediately preceding the Scheduled Mandatory Settlement Date or any earlier Settlement Date with respect to such Equity-Linked Security. In lieu of delivery of a new Equity-Linked Security, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall, if a Settlement Date with respect to such Equity-Linked Security has occurred, deliver or cause to be delivered the WGP Common Units or shares of APC Stock, as the case may be, deliverable in respect of the Purchase Contracts evidenced by such Equity-Linked Security (if applicable, together with the Separate Note, if such Equity-Linked Security is a Unit).
Section 3.06. Book-Entry Interests. The Units, on original issuance, will be issued in the form of one or more fully registered Global Units, to be delivered to the Depositary or its custodian by, or on behalf of, the Company. The Company hereby designates DTC as the initial Depositary. Such Global Units shall initially be registered on the books and records of the Company in the name of Cede & Co., the nominee of DTC, and no Beneficial Holder will receive a Definitive Unit representing such Beneficial Holder’s interest in such Global Unit, except as provided in Section 3.09. Unless and until definitive, fully registered Securities have been issued to Beneficial Holders pursuant to Section 3.09:
(i) the provisions of this Section 3.06 shall be in full force and effect;
(ii) except as contemplated in the definition of “Holders” in Section 1.01(d), the Company shall treat the Depositary for all purposes of this Agreement (including settling the Purchase Contracts and receiving approvals, votes or consents hereunder) as the Holder of the Global Units and Global Purchase Contracts and shall have no obligation to the Beneficial Holders;
(iii) to the extent that the provisions of this Section 3.06 conflict with any other provisions of this Agreement, the provisions of this Section 3.06 shall control; and
(iv) the rights of the Beneficial Holders shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such Beneficial Holders and the Depositary or the Depositary Participants, subject to Section 3.09.
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Section 3.07. Notices to Holders. Whenever a notice or other communication to the Holders is required to be given under this Agreement, the Company or the Company’s agent shall give such notices and communications to the Holders and, with respect to any Units or Purchase Contracts registered in the name of the Depositary or the nominee of the Depositary, the Company or the Company’s agent shall, except as set forth herein, have no obligations to the Beneficial Holders.
Section 3.08. Appointment of Successor Depositary. If the Depositary elects to discontinue its services as securities depositary with respect to the Units or Purchase Contracts, the Company may, in its sole discretion, appoint a successor Depositary with respect to such Units or such Purchase Contracts, as the case may be.
Section 3.09. Definitive Securities. If:
(i) the Depositary is unwilling or unable to continue as depositary for the Global Securities and the Company is unable to find a qualified replacement for such Depository within 90 days;
(ii) at any time the Depositary ceases to be a Clearing Agency registered under the Exchange Act; or
(iii) an Event of Default (as defined in the Indenture), or any failure on the part of the Company to observe or perform any covenant or agreement in the Indenture, the Purchase Contracts or the Purchase Contract Agreement, has occurred and is continuing and a Beneficial Holder requests that its Securities be issued in physical, certificated form,
then, in each case the Company shall execute, and the Purchase Contract Agent and/or the Trustee, as applicable, shall authenticate and deliver Definitive Securities representing an aggregate number of Securities with respect to the Global Security or Securities representing such Securities (or representing an aggregate number of Securities equal to the aggregate number of Securities in respect of which such Beneficial Holder has requested the issuance of Definitive Securities pursuant to clause (iii) above) in exchange for such Global Security or Securities (or portion thereof). Each Definitive Security so delivered shall evidence Units or Purchase Contracts or Notes, as the case may be, of the same kind and tenor as the Global Security so surrendered in respect thereof. Notwithstanding the foregoing, the exchange of Global Notes for Notes in definitive form shall be governed by the Indenture.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Equity-Linked Security is surrendered to the Purchase Contract Agent, the Company shall execute and deliver to the Purchase Contract Agent and Trustee, and the Purchase Contract Agent and, if applicable, the Trustee shall authenticate on behalf of the Holder, and deliver in exchange therefor, a new Equity-Linked Security, evidencing the same number of Units or Separate Purchase Contracts, as the case may be, and bearing a security number not contemporaneously outstanding.
If there shall be delivered to the Company, the Purchase Contract Agent and the Trustee (in the case of any Units) (i) evidence to their satisfaction of the destruction, loss or theft of any
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Equity-Linked Security, and (ii) such security or indemnity satisfactory to them to hold each of them and any agent of any of them harmless, then, in the absence of notice to the Company, the Purchase Contract Agent or the Trustee that such Equity-Linked Security has been acquired by a protected purchaser, the Company shall execute and deliver to the Purchase Contract Agent and the Trustee (in the case of any Units), and the Purchase Contract Agent and the Trustee (in the case of any Units) shall authenticate on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen Equity-Linked Security, a new Equity-Linked Security, evidencing the same number of Units or Separate Purchase Contracts, as the case may be, and bearing a security number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Purchase Contract Agent and Trustee, and the Purchase Contract Agent and, in the case of Units, the Trustee shall not be obligated to authenticate on behalf of the Holder, and deliver to the Holder, an Equity-Linked Security pursuant to this Section 3.10 on or after the third Business Day immediately preceding the Scheduled Mandatory Settlement Date or any earlier Settlement Date with respect to such Equity-Linked Security. In lieu of delivery of a new Equity-Linked Security, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder (if applicable), the Purchase Contract Agent shall, upon the applicable Settlement Date, deliver or arrange for delivery of the WGP Common Units deliverable (or, in the event that the Company elects to issue and deliver APC Stock, issue and deliver or arrange for the issuance and delivery of such issuable APC Stock) in respect of the Purchase Contracts evidenced by such Equity-Linked Security (if applicable, together with Separate Notes equal to the number of, and in the same form as, the Notes evidenced by such Equity-Linked Security if such Equity-Linked Security is a Unit).
Upon the issuance of any new Equity-Linked Security under this Section 3.10, the Company and the Purchase Contract Agent may require the payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto (but only if such tax or charge is payable in respect of any registration of such new Equity-Linked Security in a name of a Person other than the Person in whose name the mutilated, destroyed, lost or stolen Equity-Linked Security was registered) and any other expenses (including the fees and expenses of the Purchase Contract Agent) connected therewith.
Every new Equity-Linked Security issued pursuant to this Section 3.10 in lieu of any destroyed, lost or stolen Equity-Linked Security shall constitute an original additional contractual obligation of the Company and of the Holder in respect of the Unit or Separate Purchase Contract, as the case may be, evidenced thereby, whether or not the destroyed, lost or stolen Equity-Linked Security shall be found at any time. Such new Equity-Linked Security (and the Units or Separate Purchase Contracts, as applicable, evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits and be subject to all the obligations of this Agreement equally and proportionately with any and all other Equity-Linked Securities delivered hereunder.
The provisions of this Section 3.10 are exclusive and shall preclude, to the extent lawful, all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Equity-Linked Securities.
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Section 3.11. Persons Deemed Owners. Prior to due presentment of an Equity-Linked Security for registration of transfer, the Company, the Purchase Contract Agent and the Trustee, and any agent of the Company, the Purchase Contract Agent or the Trustee, may treat the Person in whose name such Equity-Linked Security is registered as the owner of the Unit or Purchase Contract, as the case may be, evidenced thereby, for the purpose of performance of the Units or Purchase Contracts, as applicable, evidenced by such Equity-Linked Securities and for all other purposes whatsoever, and neither the Company, the Purchase Contract Agent nor the Trustee, nor any agent of the Company, the Purchase Contract Agent or the Trustee, shall be affected by notice to the contrary.
None of the Purchase Contract Agent, Trustee, the Paying Agent and the Security Registrar shall have any responsibility or obligation to any Beneficial Holder of a Global Security, an agent member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any agent member, with respect to any ownership interest in the Securities or with respect to the delivery to any agent member, Beneficial Holder or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities and this Agreement shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of Beneficial Holders of Global Securities shall be exercised only through the Depositary subject to its Applicable Procedures. The Purchase Contract Agent, the Trustee, the Paying Agent and the Registrar shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any Beneficial Holders. The Purchase Contract Agent, the Trustee, the Paying Agent and the Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered Holder of any Global Security for all purposes of this Agreement relating to such Global Security (including the payment or delivery of amounts due hereunder and the giving of instructions or directions by or to any Beneficial Holder) as the sole Holder of such Global Security and shall have no obligations to the Beneficial Holders thereof. None of the Purchase Contract Agent, the Trustee, the Paying Agent and the Security Registrar shall have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Security, for the records of any such Depositary, including records in respect of the Beneficial Holders of any such Global Security, for any transactions between the Depositary and any agent member or between or among the Depositary, any such agent member and/or any Holder or Beneficial Holder of such Global Security, or for any transfers of beneficial interests in any such Global Security.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Purchase Contract Agent, the Trustee, or any agent of the Company, the Purchase Contract Agent or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any depositary (or its nominee), as a Holder, with respect to such Global Security or shall impair, as between such Depositary and Beneficial Holders of such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security.
None of the Purchase Contract Agent, the Trustee, the Paying Agent and the Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any
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restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among participants of DTC, members or Beneficial Holders in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Agreement, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 3.12. Cancellation. All Securities surrendered for separation or recreation and all Equity-Linked Securities surrendered for settlement or upon the registration of transfer or exchange of an Equity-Linked Security shall, if surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase Contract Agent and, if not already cancelled, be promptly cancelled by it; provided, however, that the Purchase Contract Agent shall deliver any Notes or Separate Notes so surrendered to it to the Trustee and Paying Agent (as defined in the Indenture) for disposition in accordance with the provisions of the Indenture. In the case of a Unit or Units surrendered for settlement, the Company shall promptly execute and the Trustee shall promptly authenticate and deliver in accordance with the terms of the Indenture to the Holder thereof a number of Separate Notes equal to the number of, and in the same form as, the Notes comprising part of the Units so surrendered. The Company may at any time deliver to the Purchase Contract Agent for cancellation any Equity-Linked Securities previously executed, authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Equity-Linked Securities so delivered shall, upon an Issuer Order, be promptly cancelled by the Purchase Contract Agent; provided, however, that if the Equity-Linked Securities so delivered are Units, the Purchase Contract Agent shall deliver the Notes comprising such Units to the Trustee and Paying Agent (as defined in the Indenture) for disposition in accordance with the provisions of the Indenture. No Equity-Linked Securities shall be executed, authenticated on behalf of the Holder and delivered in lieu of or in exchange for any Equity-Linked Securities cancelled as provided in this Section, except as expressly permitted by this Agreement. All cancelled Equity-Linked Securities held by the Purchase Contract Agent shall be disposed of in accordance with its customary practices.
If the Company or any Affiliate of the Company shall acquire any Equity-Linked Security, such acquisition shall not operate as a cancellation of such Equity-Linked Security unless and until such Equity-Linked Security is delivered to the Purchase Contract Agent for cancellation, in which case such Equity-Linked Security shall be accompanied by an Issuer Order and cancelled in accordance with the immediately preceding paragraph.
Section 3.13. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Purchase Contract Agent or the Trustee may use “CUSIP” numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Purchase Contract Agent and the Trustee of any change in the “CUSIP” numbers.
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ARTICLE 4
SETTLEMENT OF THE PURCHASE CONTRACTS
Section 4.01. Settlement Rate. (a) Each Purchase Contract obligates the Company to deliver, on the Mandatory Settlement Date, a number of WGP Common Units (subject to Section 4.05(b) and Article 5) equal to the Settlement Rate as determined by the Company, unless such Purchase Contract has settled prior to the Mandatory Settlement Date.
(b) The “Settlement Rate” is equal to:
(i) if the Applicable Market Value of WGP Common Units is greater than the Threshold Appreciation Price, 0.7159 WGP Common Units for each Purchase Contract (the “Minimum Settlement Rate”);
(ii) if the Applicable Market Value of WGP Common Units is greater than or equal to the Reference Price but less than or equal to the Threshold Appreciation Price, a number of WGP Common Units for each Purchase Contract equal to the Stated Amount, divided by the Applicable Market Value of WGP Common Units; and
(iii) if the Applicable Market Value of WGP Common Units is less than the Reference Price, 0.8591 WGP Common Units for each Purchase Contract (the “Maximum Settlement Rate”).
(c) The Maximum Settlement Rate, the Minimum Settlement Rate (each, a “Fixed Settlement Rate”) and the Reference Price shall be subject to adjustment as provided in Article 5 and rounded upward or downward to the nearest 1/10,000th of a WGP Common Unit (or if there is not a nearest 1/10,000th of a WGP Common Unit, to the next lower 1/10,000th of a WGP Common Unit) or nearest $0.0001, as the case may be.
(d) The Company shall give notice of the Settlement Rate to the Purchase Contract Agent and Holders no later than two Scheduled Trading Days prior to the Mandatory Settlement Date.
Section 4.02. Representations and Agreements of Holders. Each Holder of an Equity-Linked Security, by its acceptance thereof:
(i) irrevocably authorizes and directs the Purchase Contract Agent to execute and deliver on its behalf and perform this Agreement on its behalf and appoints the Purchase Contract Agent as its attorney-in-fact for any and all such purposes;
(ii) in the case of a Purchase Contract that is a component of a Unit, or that is evidenced by a Global Purchase Contract, irrevocably authorizes and directs the Purchase Contract Agent to execute, deliver and hold on its behalf the Global Purchase Contract or the Component Purchase Contract evidencing such Purchase Contract and appoints the Purchase Contract Agent its attorney-in-fact for any and all such purposes;
(iii) consents to the terms and provisions of this Agreement;
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(iv) represents that either (A) no portion of the assets used to acquire and hold the Units or Separate Purchase Contracts, as the case may be, constitutes assets of any (1) employee benefit plan that is subject to Title I of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) plan, individual retirement account or other arrangement that is subject to Section 4975 of the Code or provisions under any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of the Code or ERISA (collectively, “Similar Laws”) or (3) entity whose underlying assets are considered to include “plan assets” of such plan, account or arrangement or (B) the purchase and holding of the Units or Separate Purchase Contracts, as the case may be, will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any applicable Similar Laws;
(v) agrees to act consistently with the tax treatment provided for in Section 11.07; and
(vi) agrees to be bound by the terms and provisions of this Agreement.
Section 4.03. Purchase Contract Settlement Fund. On the applicable Settlement Date, the Company shall deliver to the applicable Holders (or their designees) or the Purchase Contract Agent, for the benefit of the Holders of the Outstanding Purchase Contracts (or, in the case of an Early Settlement, for the benefit of the Holders of Purchase Contracts that have elected such Early Settlement), as the case may be, the aggregate number of WGP Common Units or shares of APC Stock, as the case may be, to which such Holders of the Purchase Contracts to be settled on such Settlement Date are entitled hereunder (such WGP Common Units or shares of APC Stock, as the case may be, together with any dividends or distributions with respect to such WGP Common Units or shares of APC Stock for which a record date and payment date for such dividend or distribution have occurred on or after the applicable Determination Date, the “Purchase Contract Settlement Fund”). When any cash is required to be delivered to Holders pursuant to this Article 4, the Purchase Contract Agent shall deliver such cash, including any dividends or distributions with respect to the WGP Common Units or shares of APC Stock, as the case may be, constituting part of the Purchase Contract Settlement Fund (but without interest thereon) to such Holders (or their designees), in accordance with the written direction of the Company. When any WGP Common Units or shares of APC Stock, as the case may be, are required to be delivered to Holders pursuant to this Article 4, the Company shall deliver such WGP Common Units or shares of APC Stock, as the case may be, to such Holders (or their designees), registered in the name of such Holder or such Holder’s designee pursuant to Section 4.11.
Section 4.04. Settlement Conditions. A Holder’s right to receive the WGP Common Units or shares of APC Stock, as the case may be, and any dividends or distributions with respect to such WGP Common Units or shares of APC Stock constituting part of the Purchase Contract Settlement Fund, upon settlement of any of its Purchase Contracts is subject to the following conditions:
(a) if such Purchase Contract or the Unit that includes such Purchase Contract is in the form of a Definitive Security, surrendering the relevant Definitive Security to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in
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blank and with duly completed settlement instructions in the form attached thereto, or if such Purchase Contract is represented by a Global Security, surrendering the relevant Security (or causing a reduction in the number of Purchase Contracts represented thereby, if applicable) in compliance with the Applicable Procedures of the Depositary; and
(b) the payment of any transfer or similar taxes payable pursuant to Section 4.11.
Section 4.05. Mandatory Settlement on the Mandatory Settlement Date.
(a) On the Mandatory Settlement Date, subject to satisfaction of the conditions set forth in Section 4.04 by a Holder with respect to any of its Purchase Contracts, the Company shall cause a number of WGP Common Units (subject to Section 4.05(b)) per Purchase Contract equal to the Settlement Rate to be delivered, together with payment of (i) any cash payable in lieu of fractional WGP Common Units pursuant to Section 4.13 and (ii) any dividends or distributions with respect to such WGP Common Units constituting part of the Purchase Contract Settlement Fund (but without any interest thereon), to such Holder by book-entry transfer or other appropriate procedures pursuant to Section 4.11. The Person in whose name any WGP Common Units shall be deliverable upon settlement of any Purchase Contract on the Mandatory Settlement Date shall become the holder of record of such WGP Common Units as of the close of business on the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value of WGP Common Units is determined.
(b) (i) Unless an APC Delisting has occurred and is continuing, the Company may elect to settle all (but not less than all) of the Purchase Contracts on the Mandatory Settlement Date by issuing and delivering shares of APC Stock (an “APC Mandatory Settlement Election”) instead of delivering WGP Common Units as described in Section 4.05(a). The Company must make an APC Mandatory Settlement Election by delivering to Holders and the Purchase Contract Agent an irrevocable notice of such election prior to the 33rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date. If the Company does not deliver such a notice prior to the 33rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, and the Company is not obligated to make an APC Mandatory Settlement Election pursuant to Section 4.05(b)(iii), the Company shall settle all Purchase Contracts on the Mandatory Settlement Date by delivering WGP Common Units pursuant to Section 4.05(a). If the Company makes an APC Mandatory Settlement Election, on the Mandatory Settlement Date, subject to satisfaction of the conditions set forth in Section 4.04 by a Holder with respect to any of its Purchase Contracts, the Company shall cause to be delivered a number of shares of APC Stock per Purchase Contract equal to (1) the Settlement Rate, multiplied by the Applicable Market Value of WGP Common Units (such product, the “Mandatory Settlement Value”), divided by (2) 98% of the Applicable Market Value of APC Stock, together with payment of (x) any cash payable in lieu of fractional shares of APC Stock pursuant to Section 4.13 and (y) any dividends or distributions with respect to such shares constituting part of the Purchase Contract Settlement Fund (but without any interest thereon), to such Holder by book-entry transfer or other appropriate procedures pursuant to Section 4.11. The Person in whose name any shares of APC Stock shall be issuable upon settlement of any Purchase Contract on the Mandatory Settlement Date shall become the holder of record of such shares as of the close of business on the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value of WGP Common Units and APC Stock is determined.
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(ii) Notwithstanding Section 4.05(b)(i), in no event shall the number of shares of APC Stock delivered upon settlement of each Purchase Contract exceed the Share Cap. To the extent that the Mandatory Settlement Value exceeds the product of the number of shares of APC Stock delivered in settlement of each Purchase Contract and 98% of the Applicable Market Value of APC Stock, the Company shall have no obligation to pay such excess amount in cash, WGP Common Units or otherwise.
(iii) If, as of the 34th Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, the Company has not made an APC Mandatory Settlement Election and the Company is legally prohibited by applicable law or any order or judgment of any court or other agency of government having jurisdiction over the Company from delivering WGP Common Units in settlement of the Purchase Contracts, then the Company shall make an APC Mandatory Settlement Election on such day, notwithstanding the occurrence and continuance of any APC Delisting. The Company shall notify the Holders and the Purchase Contract Agent of an APC Mandatory Settlement Election pursuant to this Section 4.05(b)(iii) no later than the immediately following Business Day.
Section 4.06. Early Settlement. (a) Subject to and upon compliance with the provisions of this Section 4.06, on any Trading Day prior to the close of business on the 33rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date, the Holder of a Unit or Separate Purchase Contract may elect to settle its Purchase Contracts early, in whole or in part, and receive a number of WGP Common Units per Purchase Contract equal to the Early Settlement Rate as of the Early Settlement Date (“Early Settlement Right”), subject to Section 4.06(i).
(b) (i) A Holder’s right to receive WGP Common Units (or, if applicable, shares of APC Stock) upon Early Settlement of any of its Purchase Contracts is subject to the following conditions:
(A) if such Purchase Contract or the Unit that includes such Purchase Contract is in the form of a Global Security, compliance with the Applicable Procedures of the Depositary for effecting an Early Settlement; if such Purchase Contract or the Unit that includes such Purchase Contract is in the form of a Definitive Security, delivery of a written and signed notice of election (an “Early Settlement Notice”) in the form attached to the Purchase Contract to the Purchase Contract Agent (with a copy to the Company) electing Early Settlement of such Purchase Contract; and
(B) satisfaction of the conditions set forth in Section 4.04.
(ii) Unless the Company makes an APC Early Settlement Election, the Early Settlement Right is also subject to the condition that, if required under U.S. federal securities laws (in the view of counsel, which need not be in the form of a written opinion,
34
for the Company), WGP has a Registration Statement in effect with respect to the WGP Common Units and other securities, if any, deliverable upon settlement of a Purchase Contract at the time such Early Settlement is effected. If such a Registration Statement is so required, (A) the Company shall, promptly after the date on which the Holder attempts to effect an Early Settlement, so notify such Holder, and (B) the Company shall use its commercially reasonable efforts to cause WGP (and the issuer of such other securities) to (1) have a Registration Statement in effect covering those WGP Common Units and/or other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (2) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Early Settlement (it being understood that if there is a material business transaction or development with respect to WGP that has not yet been publicly disclosed, the Company shall not be required to cause WGP to file such Registration Statement or provide such a Prospectus, and the Early Settlement Right will not be available, until WGP has publicly disclosed such transaction or development; provided that the Company shall use commercially reasonable efforts to cause WGP to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective.
(c) If a Holder complies with the requirements set forth in Section 4.06(b)(i)(A) before the close of business on any Business Day, then that Business Day shall be considered the “Early Settlement Notice Date.” If a Holder complies with the requirements set forth in Section 4.06(b)(i)(A) at or after the close of business on any Business Day or at any time on a day that is not a Business Day, then the next succeeding Business Day shall be considered the “Early Settlement Notice Date.”
(d) Subject to satisfaction of the conditions set forth in Section 4.06(b) (including, if applicable, the condition set forth in Section 4.06(b)(ii)) with respect to any Purchase Contracts, the Company shall cause a number of WGP Common Units per Purchase Contract equal to the Early Settlement Rate as of the Early Settlement Date to be delivered (or, if the Company makes an APC Early Settlement Election, the number of shares of APC Stock determined as set forth in Section 4.06(i)(i) to be issued and delivered), together with payment of (i) any cash payable in lieu of fractional WGP Common Units or fractional shares of APC Stock, as the case may be, pursuant to Section 4.13 and (ii) any dividends or distributions with respect to such WGP Common Units or shares of APC Stock, as the case may be, constituting part of the Purchase Contract Settlement Fund (but without any interest thereon), to such Holder by book-entry transfer or other appropriate procedures pursuant to Section 4.11 on the third Business Day following the Early Settlement Date. The Person in whose name any WGP Common Units shall be deliverable upon such Early Settlement of a Purchase Contract shall become the holder of record of such WGP Common Units as of the close of business on the relevant Early Settlement Date. The Person in whose name any shares of the APC Stock shall be issuable upon such Early Settlement of a Purchase Contract shall become the holder of record of such shares of APC Stock as of the close of business on the relevant Early Settlement Date.
35
(e) Upon a Holder’s satisfaction of the conditions set forth in Section 4.06(b)(i)(A) with respect to Purchase Contracts that are a component of Units, the Company shall execute and the Trustee shall authenticate (pursuant to the Indenture) on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, Separate Notes, in same form as the Notes comprising part of the Units, equal to the number of Purchase Contracts as to which such conditions have been complied with.
(f) In the event that Early Settlement is effected with respect to Purchase Contracts represented by fewer than all the Purchase Contracts evidenced by a Security, upon such Early Settlement, the Company shall execute and the Purchase Contract Agent and Trustee shall authenticate on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Security evidencing the Purchase Contracts as to which Early Settlement was not effected.
(g) Upon receipt of any Early Settlement Notice pursuant to Section 4.06(b), the Purchase Contract Agent shall promptly deliver a copy of such Early Settlement Notice to the Company.
(h) In the event that a Holder seeks to exercise its Early Settlement Right, the Company does not make any APC Early Settlement Election in respect of such Early Settlement and the Early Settlement Date does not occur on or prior to the 33rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date (as a result of a failure to satisfy the conditions set forth in Section 4.06(b)(ii) or otherwise), the Holder’s exercise of such Early Settlement Right shall be void and the provisions of Section 4.05 shall apply.
(i) (i) Unless an APC Delisting has occurred and is continuing, in respect of any Early Settlement Notice Date, the Company may elect to settle all (but not less than all) Purchase Contracts for which holders exercise their Early Settlement Right in shares of APC Stock (an “APC Early Settlement Election”) by delivering to each such Holder, and the Purchase Contract Agent, an irrevocable notice of such APC Early Settlement Election no later than the close of business on the Trading Day immediately following such Early Settlement Notice Date. If the Company does not deliver such notice by the close of business on the Trading Day immediately following such Early Settlement Notice Date and the Company is not obligated to make an APC Early Settlement Election pursuant to Section 4.06(i)(iii), the Company shall settle all Purchase Contracts for which Holders exercise their Early Settlement Right in WGP Common Units pursuant to Section 4.06(a). If the Company makes an APC Early Settlement Election, each such Holder will receive a number of shares of APC Stock per Purchase Contract equal to (1) the Early Settlement Rate as of the Early Settlement Date, multiplied by the Early Settlement Market Value of WGP Common Units (such product, the “Early Settlement Value”), divided by (2) 98% of the Early Settlement Market Value of APC Stock.
(ii) Notwithstanding Section 4.06(i)(i), in no event shall the number of shares of APC Stock delivered per Purchase Contract upon Early Settlement exceed the Share Cap. To the extent that the Early Settlement Value exceeds the product of the number of shares of APC Stock delivered upon Early Settlement of each Purchase Contract and 98% of the Early Settlement Market Value of APC Stock, the Company shall have no obligation to pay such excess amount in cash, WGP Common Units or otherwise.
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(iii) If, as of any Early Settlement Notice Date, the Company is legally prohibited by applicable law or any order or judgment of any court or other agency of government having jurisdiction over the Company from delivering WGP Common Units in settlement of the Purchase Contracts, then the Company shall make an APC Early Settlement Election on such day with respect to any Purchase Contracts with such Early Settlement Notice Date, notwithstanding the occurrence and continuance of any APC Delisting, and the Company shall notify the Holders and the Purchase Contract Agent of an election pursuant to this Section 4.06(i)(iii) no later than the immediately following Business Day.
Section 4.07. Early Settlement upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the 33rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date and a Holder exercises the option to effect Early Settlement in respect of any of its Purchase Contracts in connection with such Fundamental Change in accordance with the procedures set forth in Section 4.07(c), such Holder shall receive a number of WGP Common Units (and cash payable in lieu of any fractional WGP Common Units pursuant to Section 4.13) (or, if a WGP Reorganization Event has occurred, a number of Units of WGP Exchange Property), subject to Section 4.07(m) and Section 4.07(b), for each such Purchase Contract equal to the Fundamental Change Early Settlement Rate as of the Fundamental Change Early Settlement Date (the right to effect such an Early Settlement, the “Fundamental Change Early Settlement Right”). An Early Settlement shall be deemed for these purposes to be “in connection with” such Fundamental Change if the Holder satisfies the requirements for effecting a Fundamental Change Early Settlement of its Purchase Contracts set forth in Section 4.07(c)(i)(A) hereof, during the period beginning on, and including, the Effective Date of such Fundamental Change and ending at the close of business on the 30th Business Day thereafter (or, if earlier, the third Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date) (the “Fundamental Change Early Settlement Period”). If one or more of the 20 scheduled Trading Days beginning on, and including, the third Trading Day immediately following the Effective Date of a Fundamental Change is not a Trading Day, and the 20 consecutive Trading Day period described in Section 4.07(e)(ii) would end after the last day of the Fundamental Change Early Settlement Period, then the Fundamental Change Early Settlement Period shall be extended to the last Trading Day of such 20 consecutive Trading Day period.
(b) Notwithstanding anything to the contrary herein (including, for the avoidance of doubt, in Section 4.07(m)), in the case of a Fundamental Change described in clause (b) of the definition of “Fundamental Change” in which all holders of WGP Common Units receive only cash in exchange for their WGP Common Units in such Fundamental Change, for any settlement of a Purchase Contract following the Effective Date of such Fundamental Change, the consideration due upon any Early Settlement in connection with such Fundamental Change shall be calculated based solely on the Unit Price for the transaction and will be deemed to be an amount of cash per Purchase Contract equal to the Fundamental Change Early Settlement Rate, multiplied by such Unit Price.
37
(c) (i) A Holder’s exercise of its Fundamental Change Early Settlement Right in respect of any of its Purchase Contracts is subject to the following conditions:
(A) if such Purchase Contract or the Unit that includes such Purchase Contract is in the form of a Global Security, compliance with the Applicable Procedures of the Depositary for effecting an Early Settlement; if such Purchase Contract or the Unit that includes such Purchase Contract is in the form of a Definitive Security, delivery of a an Early Settlement Notice in the form attached to the Purchase Contract to the Purchase Contract Agent (with a copy to the Company) electing Early Settlement of such Purchase Contract; and
(B) satisfaction of the conditions set forth in Section 4.04.
(ii) Unless the Company makes an APC Fundamental Change Early Settlement Election, the Fundamental Change Early Settlement Right is also subject to the condition that, if required under U.S. federal securities laws (in the view of counsel, which need not be in the form of a written opinion, for the Company), WGP has a Registration Statement in effect with respect to the WGP Common Units and other securities, if any, deliverable upon settlement of a Purchase Contract at the time such Fundamental Change Early Settlement is effected. If such a Registration Statement is so required, (A) the Company shall, promptly after the Effective Date of the Fundamental Change, so notify such Holder, and (B) the Company shall use its commercially reasonable efforts to cause WGP (and the issuer of any such other securities) to (1) have in effect throughout the Fundamental Change Early Settlement Period, and until the WGP Common Units and/or other securities are delivered in settlement of any Purchase Contracts in connection with the relevant Fundamental Change, a Registration Statement covering the WGP Common Units and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (2) provide a Prospectus in connection therewith, in each case, in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that for so long as there is a material business transaction or development with respect to WGP that has not yet been publicly disclosed, the Company shall not be required to cause WGP to file such Registration Statement or provide such a Prospectus, and the Fundamental Change Early Settlement Right will not be available, until WGP has publicly disclosed such transaction or development; provided that the Company shall use commercially reasonable efforts to cause WGP to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective.
(d) The Company shall provide the Purchase Contract Agent, the Trustee and the Holders of Units and Separate Purchase Contracts with a notice of a Fundamental Change within three Business Days after its occurrence, issue a press release announcing the Effective Date and post such press release on its website. The notice shall set forth (i) the events causing such Fundamental Change, (ii) the Effective Date of the Fundamental Change, (iii) the procedures that a Holder must follow to exercise the Fundamental Change Early Settlement Right, (iv) if any outstanding Securities are Definitive Securities, the name and address of the Purchase Contract Agent, (v) the applicable Fundamental Change Early Settlement Rate, (vi) whether the Company has made an APC Fundamental Change Early Settlement Election, (vii) if the Company has not
38
made an APC Fundamental Change Early Settlement Election, the date on which the Company expects the condition set forth in Section 4.07(c)(ii) to be satisfied, (viii) if not solely WGP Common Units, the kind and amount of cash, securities and other property receivable by the Holder upon settlement and (ix) the deadline by which each Holder’s Fundamental Change Early Settlement Right must be exercised.
(e) The “Fundamental Change Early Settlement Rate” shall be determined by the Company by reference to the table in Section 4.07(g), based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the unit price (the “Unit Price”) in the Fundamental Change, which shall be:
(i) in the case of a Fundamental Change described in clause (b) of the definition thereof in which all holders of WGP Common Units receive only cash in exchange for their WGP Common Units in such Fundamental Change, the cash amount paid per WGP Common Unit; and
(ii) in all other cases, the average of the Daily VWAPs of WGP Common Units (or, if applicable, WGP Exchange Property) over the 20 consecutive Trading Day period beginning on, and including, the third Trading Day immediately following the Effective Date.
(f) The Unit Prices set forth in the first column of the table in Section 4.07(g) shall be adjusted as of any date on which any Fixed Settlement Rate is otherwise adjusted. The adjusted Unit Prices shall equal the Unit Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Maximum Settlement Rate immediately prior to the adjustment giving rise to the Unit Price adjustment and the denominator of which is the Maximum Settlement Rate as so adjusted. The Fundamental Change Early Settlement Rates per Purchase Contract in the table in Section 4.07(g) shall be adjusted at the same time and in the same manner as the Fixed Settlement Rates as set forth in Section 5.01.
(g) The following table sets forth the Fundamental Change Early Settlement Rate per Purchase Contract for each Unit Price and Effective Date set forth below:
| Effective Date | ||||||||||||||||
| Unit Price |
June 10, 2015 |
June 7, 2016 |
June 7, 2017 |
June 7, 2018 |
||||||||||||
| $30.00 |
0.6896 | 0.7440 | 0.8025 | 0.8591 | ||||||||||||
| $40.00 |
0.6920 | 0.7408 | 0.7989 | 0.8591 | ||||||||||||
| $45.00 |
0.6884 | 0.7338 | 0.7897 | 0.8591 | ||||||||||||
| $50.00 |
0.6838 | 0.7255 | 0.7771 | 0.8591 | ||||||||||||
| $55.00 |
0.6788 | 0.7168 | 0.7629 | 0.8591 | ||||||||||||
| $58.20 |
0.6758 | 0.7115 | 0.7538 | 0.8591 | ||||||||||||
| $60.00 |
0.6741 | 0.7087 | 0.7487 | 0.8333 | ||||||||||||
| $65.00 |
0.6699 | 0.7014 | 0.7359 | 0.7692 | ||||||||||||
| $69.84 |
0.6665 | 0.6954 | 0.7254 | 0.7159 | ||||||||||||
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| Effective Date | ||||||||||||||||
| Unit Price |
June 10, 2015 |
June 7, 2016 |
June 7, 2017 |
June 7, 2018 |
||||||||||||
| $75.00 |
0.6634 | 0.6901 | 0.7163 | 0.7159 | ||||||||||||
| $85.00 |
0.6592 | 0.6828 | 0.7046 | 0.7159 | ||||||||||||
| $90.00 |
0.6577 | 0.6804 | 0.7010 | 0.7159 | ||||||||||||
| $100.00 |
0.6560 | 0.6772 | 0.6969 | 0.7159 | ||||||||||||
| $125.00 |
0.6554 | 0.6751 | 0.6948 | 0.7159 | ||||||||||||
| $150.00 |
0.6569 | 0.6759 | 0.6954 | 0.7159 | ||||||||||||
| $175.00 |
0.6588 | 0.6773 | 0.6963 | 0.7159 | ||||||||||||
The exact Unit Price and Effective Date may not be set forth in the table above, in which case:
(i) if the applicable Unit Price is between two Unit Prices in the table or the Effective Date is between two Effective Dates in the table, the Fundamental Change Early Settlement Rate shall be determined by a straight-line interpolation between the Fundamental Change Early Settlement Rates set forth for the higher and lower Unit Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;
(ii) if the applicable Unit Price is greater than $175.00 per WGP Common Unit (subject to adjustment in the same manner as the Unit Prices set forth in the column headings of the table above), the Fundamental Change Early Settlement Rate shall be the Minimum Settlement Rate; or
(iii) if the applicable Unit Price is less than $30.00 per WGP Common Unit (subject to adjustment in the same manner as the Unit Prices set forth in the column headings of the table above) (the “Minimum Unit Price”), the Fundamental Change Early Settlement Rate shall be determined as if the Unit Price equaled the Minimum Unit Price, and using straight-line interpolation, as described in clause (i) of this Section 4.07(g), if the Effective Date is between two Effective Dates in the table.
The maximum number of WGP Common Units deliverable under a Purchase Contract is 0.8591, subject to adjustment at the same time and in the same manner as the Fixed Settlement Rates as set forth under Section 5.01.
(h) If a Holder exercises its Fundamental Change Early Settlement Right following a WGP Reorganization Event, the Company shall deliver to such Holder or the Purchase Contract Agent on behalf of such Holder, a number of Units of WGP Exchange Property equal to the number of WGP Common Units the Company would otherwise be required to deliver, pursuant to Section 5.02.
(i) Subject to satisfaction of all applicable conditions set forth in Section 4.07(c) with respect to any of a Holder’s Purchase Contracts, the Company shall (A) cause to be delivered a number of WGP Common Units (or, if a WGP Reorganization Event has occurred, a number of Units of WGP Exchange Property) determined as set forth in this Section 4.07, (B) cause to be
40
issued and delivered the number of shares of APC Stock determined as set forth in Section 4.07(m) or (C) cause to be delivered the amount of cash determined as set forth in Section 4.07(b), as the case may be, as a result of such Holder’s exercise of the Fundamental Change Early Settlement Right, together with payment of (i) any cash payable in lieu of fractional WGP Common Units or fractional shares of APC Stock, as the case may be, pursuant to Section 4.13 and (ii) any dividends or distributions with respect to such WGP Common Units or shares of APC Stock, as the case may be, constituting part of the Purchase Contract Settlement Fund (but without any interest thereon), to such Holder by book-entry transfer or other appropriate procedures pursuant to Section 4.11 on the third Business Day following the Fundamental Change Early Settlement Date. The Person in whose name any WGP Common Units shall be deliverable following exercise of a Holder’s Fundamental Change Early Settlement Right shall become the holder of record of such WGP Common Units as of the close of business on the Fundamental Change Early Settlement Date. The Person in whose name any shares of APC Stock shall be issuable following exercise of a Holder’s Fundamental Change Early Settlement Right shall become the holder of record of such shares of APC Stock as of the close of business on the Fundamental Change Early Settlement Date.
(j) Upon a Holder’s satisfaction of the conditions set forth in Section 4.07(c)(i)(A) with respect to Purchase Contracts that are a component of Units, the Company shall execute and the Trustee shall authenticate (pursuant to the Indenture) on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, Separate Notes, in same form as the Notes comprising part of the Units, equal to the number of Purchase Contracts as to which such conditions have been complied with.
(k) If a Holder exercises its Fundamental Change Early Settlement Right with respect to Purchase Contracts represented by less than all the Purchase Contracts evidenced by a Security, upon such Fundamental Change Early Settlement, the Company shall execute and the Purchase Contract Agent and Trustee shall authenticate on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Security evidencing the Purchase Contracts as to which a Fundamental Change Early Settlement was not effected.
(l) In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right, the Company does not make any APC Fundamental Change Early Settlement Election in respect of such Fundamental Change and the Fundamental Change Early Settlement Date does not occur on or prior to the 33rd Scheduled Trading Day immediately preceding the Scheduled Mandatory Settlement Date (as a result of Section 4.07(c)(ii) or otherwise), the Holder’s exercise of such Fundamental Change Early Settlement Right shall be void and the provisions of Section 4.05 shall apply.
(m) (i) In respect of any Fundamental Change (other than a Fundamental Change described in clause (b) of the definition of “Fundamental Change” in which all holders of WGP Common Units receive only cash in exchange for their WGP Common Units in such Fundamental Change), unless an APC Delisting has occurred and is continuing, the Company may elect to settle all (but not less than all) Purchase Contracts for which Holders exercise their Fundamental Change Early Settlement Right with respect to such Fundamental Change in shares of APC Stock (an “APC Fundamental Change Early Settlement Election”). The Company must make any APC Fundamental Change Early Settlement Election in respect of a Fundamental
41
Change by delivering to all Holders and the Purchase Contract Agent an irrevocable notice of such election prior to the close of business on the second Trading Day immediately following the Effective Date of such Fundamental Change. If the Company does not deliver such notice prior to the close of business on the second Trading Day immediately following the Effective Date of such Fundamental Change and the Company is not obligated to make an APC Fundamental Change Early Settlement Election pursuant to Section 4.07(m)(iii), the Company shall settle all Purchase Contracts for which Holders exercise their Fundamental Change Early Settlement Right in respect of such Fundamental Change in WGP Common Units pursuant to Section 4.07(a). If the Company makes an APC Fundamental Change Early Settlement Election in respect of a Fundamental Change, Holders shall receive as a result of an exercise of their Fundamental Change Early Settlement Right a number of shares of APC Stock per Purchase Contract equal to (a) the Fundamental Change Early Settlement Rate as of the Fundamental Change Early Settlement Date, multiplied by the Unit Price (such product, the “Fundamental Change Early Settlement Value”), divided by (b) 98% of the Fundamental Change Market Value of APC Stock.
(ii) Notwithstanding Section 4.07(m)(i), in no event shall the number of shares of APC Stock delivered per Purchase Contract upon a Fundamental Change Early Settlement exceed the Share Cap. To the extent that the Fundamental Change Early Settlement Value exceeds the product of the number of shares of APC Stock delivered upon Early Settlement of each Purchase Contract in connection with a Fundamental Change and 98% of the Fundamental Change Market Value of APC Stock, the Company shall have no obligation to pay such excess amount in cash, WGP Common Units, WGP Exchange Property or otherwise.
(iii) If, as of the close of business on the second Trading Day immediately following the Effective Date of any Fundamental Change, the Company has not made an APC Fundamental Change Early Settlement Election and the Company is legally prohibited by applicable law or any order or judgment of any court or other agency of government having jurisdiction over the Company from delivering WGP Common Units in settlement of the Purchase Contracts, then the Company shall make an APC Fundamental Change Early Settlement Election on such day in respect of such Fundamental Change, notwithstanding the occurrence and continuance of any APC Delisting, and the Company shall notify the Holders and the Purchase Contract Agent of an election pursuant to this Section 4.07(m)(iii) no later than the immediately following Business Day.
(n) If a Holder does not elect to exercise the Fundamental Change Early Settlement Right, such Holder’s Purchase Contracts shall remain outstanding and shall be subject to normal settlement on any subsequent Settlement Date, including, if applicable, the provisions set forth in Section 5.02.
Section 4.08. [Reserved].
Section 4.09. [Reserved].
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Section 4.10. Acceleration of Mandatory Settlement Date. If a Bankruptcy Event occurs at any time on or before the last Trading Day of the 20 consecutive Trading Day period during which the Applicable Market Value is determined (the day on which such Bankruptcy Event occurs, the “Acceleration Date”), the Mandatory Settlement Date shall automatically be accelerated to the third Business Day immediately following the Acceleration Date and Holders of Purchase Contracts shall be entitled to receive, upon settlement of the Purchase Contracts on such accelerated Mandatory Settlement Date, a number of WGP Common Units per Purchase Contract equal to the Maximum Settlement Rate in effect immediately prior to the Acceleration Date (regardless of the market value of the WGP Common Units at that time) or, at the Company’s election within one Business Day of the Acceleration Date, a number of shares of APC Stock of equivalent value (as reasonably determined by the Board of Directors). The Company shall cause to be delivered the WGP Common Units, shares of APC Stock or Units of Exchange Property, as the case may be, as a result of any such acceleration of the Mandatory Settlement Date in accordance with the provisions set forth in Section 4.05, except that (i) such delivery shall be made on the accelerated Mandatory Settlement Date, and (ii) the Person in whose name any WGP Common Units or shares of APC Stock shall be issuable following such acceleration shall become the holder of record of such WGP Common Units or shares of APC Stock, as the case may be, as of the close of business on the Acceleration Date.
Section 4.11. Registration of Underlying Shares and Transfer Taxes. Any WGP Common Units deliverable upon settlement of the Purchase Contracts shall be registered in the name of the Holder or the Holder’s designee as specified in the settlement instructions provided by the Holder to the Purchase Contract Agent, and the Company will pay all documentary, stamp or similar issue or transfer taxes attributable to the delivery thereof, unless any such tax is payable in respect of any registration of such WGP Common Units in a name of a Person other than the Person in whose name the Security evidencing such Purchase Contract is registered, in which case the Company shall not be required to pay any such tax and no such registration shall be made unless the Person requesting such registration has paid any such taxes required by reason of such registration in a name of a Person other than the Person in whose name the Security evidencing such Purchase Contract is registered or has established to the satisfaction of the Company that such tax either has been paid or is not payable. Any shares of APC Stock issuable upon settlement of the Purchase Contracts shall be registered in the name of the Holder or the Holder’s designee as specified in the settlement instructions provided by the Holder to the Purchase Contract Agent, and the Company will pay all documentary, stamp or similar issue or transfer taxes attributable to the issuance thereof, unless any such tax is payable in respect of any registration of such shares in a name of a Person other than the Person in whose name the Security evidencing such Purchase Contract is registered, in which case the Company shall not be required to pay any such tax and no such registration shall be made unless the Person requesting such registration has paid any such taxes required by reason of such registration in a name of a Person other than the Person in whose name the Security evidencing such Purchase Contract is registered or has established to the satisfaction of the Company that such tax either has been paid or is not payable.
Section 4.12. Return of Purchase Contract Settlement Fund. In the event a Holder fails to effect surrender or delivery of its Units or Purchase Contracts, if required hereunder, on or following the applicable Settlement Date in accordance with the provisions hereof, any cash
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constituting part of the Purchase Contract Settlement Fund that is held by the Purchase Contract Agent, including any dividends or distributions with respect to the WGP Common Units or shares of APC Stock, as the case may be, constituting part of the Purchase Contract Settlement Fund, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until the earlier to occur of:
(i) the surrender of the relevant Units or Separate Purchase Contracts for settlement in accordance with the provisions hereof or receipt by the Company and the Purchase Contract Agent from such Holder of satisfactory evidence that such Units or Separate Purchase Contracts have been destroyed, lost or stolen, together with any indemnity that may be required by the Purchase Contract Agent and the Company; and
(ii) the passage of two years from the applicable Settlement Date, following which the Purchase Contract Agent shall pay to the Company such Holder’s share of such cash, including any dividends or distributions with respect to the WGP Common Units or shares of APC Stock, as the case may be, constituting part of the Purchase Contract Settlement Fund; provided, however, that prior to receiving any such payment, the Company shall mail to each such Holder notice that such property remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing, any unclaimed balance of such property then remaining will be repaid to the Company. After payment to the Company, (A) Holders entitled to such property must look to the Company for payment as general creditors, unless applicable abandoned property law designates another Person, and (B) all liability of the Purchase Contract Agent with respect to such property shall cease.
Section 4.13. No Fractional Common Units or Shares. No fractional WGP Common Units or scrip certificates representing fractional WGP Common Units shall be delivered to Holders upon settlement of the Purchase Contracts. In lieu of any fractional WGP Common Units that would otherwise be deliverable upon settlement of any Purchase Contracts, a Holder of a Purchase Contract shall be entitled to receive an amount in cash equal to the fraction of a WGP Common Unit, calculated on an aggregate basis in respect of the Purchase Contracts being settled, multiplied by the Daily VWAP of the WGP Common Units on the Trading Day immediately preceding the Mandatory Settlement Date, Early Settlement Date or Fundamental Change Early Settlement Date, as the case may be. No fractional shares or scrip certificates representing fractional shares of APC Stock shall be issued or delivered to Holders upon settlement of the Purchase Contracts. In lieu of any fractional shares of APC Stock that would otherwise be issuable upon settlement of any Purchase Contracts, a Holder of a Purchase Contract shall be entitled to receive an amount in cash equal to the fraction of a share of APC Stock, calculated on an aggregate basis in respect of the Purchase Contracts being settled, multiplied by the Daily VWAP of the APC Stock on the Trading Day immediately preceding the Mandatory Settlement Date, Early Settlement Date or Fundamental Change Early Settlement Date, as the case may be. The Company shall provide the Purchase Contract Agent with sufficient funds to permit the Purchase Contract Agent to make all cash payments required by this Section 4.13 in a timely manner.
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ARTICLE 5
ADJUSTMENTS
Section 5.01. Adjustments to the Fixed Settlement Rates. (a) Each Fixed Settlement Rate shall be subject to adjustment, without duplication, upon:
(i) The issuance of WGP Common Units as a dividend or distribution to all or substantially all of the holders of WGP Common Units, or a subdivision or combination of WGP Common Units, in which event each Fixed Settlement Rate shall be adjusted based on the following formula:
| SR1 = SR0 × |
OS1 |
|||||
| OS0 |
where,
| SR0 | = | the Fixed Settlement Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution or immediately prior to the open of business on the effective date for such subdivision or combination, as the case may be; | ||
| SR1 | = | the Fixed Settlement Rate in effect immediately after the close of business on such Record Date or immediately after the open of business on such effective date, as the case may be; | ||
| OS0 | = | the number of WGP Common Units outstanding immediately prior to the close of business on such Record Date or immediately prior to the open of business on such effective date, as the case may be (in either case, prior to giving effect to such event); and | ||
| OS1 | = | the number of WGP Common Units that would be outstanding immediately after giving effect to such dividend, distribution, subdivision or combination. | ||
Any adjustment made pursuant to this clause (i) will become effective immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the effective date for such WGP Common Unit subdivision or WGP Common Unit combination, as the case may be. If any dividend or distribution of the type described in this clause (i) is declared but not so paid or made, each Fixed Settlement Rate shall be immediately readjusted, effective as of the date WGP’s general partner’s board of directors publicly announces its decision not to pay or make such dividend or distribution, to such Fixed Settlement Rate that would then be in effect if such dividend or distribution had not been declared. For the purposes of this clause (i), the number of WGP Common Units outstanding immediately prior to the close of business on the Record Date for such dividend or distribution or the open of business on the effective date for such WGP Common Unit subdivision or WGP Common Unit combination, as applicable, shall not include WGP Common Units held in treasury by WGP but shall include any WGP Common Units issuable in respect of any scrip certificates issued in lieu of fractions of WGP Common Units. The Company shall cause WGP not to pay any dividend or make any distribution on WGP Common Units held in treasury by WGP.
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(ii) The issuance to all or substantially all holders of WGP Common Units of rights, options or warrants entitling such holders for a period expiring 45 calendar days or less from the date of issuance of such rights, options or warrants, to subscribe for or purchase WGP Common Units at a price per WGP Common Unit less than the average of the Daily VWAPs of the WGP Common Units for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement for such issuance, in which event each Fixed Settlement Rate shall be increased based on the following formula:
| SR1 = SR0 × |
OS0 + X |
|||||
| OS0 + Y |
where,
| SR0 | = | the Fixed Settlement Rate in effect immediately prior to the close of business on the Record Date for such issuance; | ||
| SR1 | = | the Fixed Settlement Rate in effect immediately after the close of business on such Record Date; | ||
| OS0 | = | the number of WGP Common Units outstanding immediately prior to the close of business on such Record Date; | ||
| X | = | the total number of WGP Common Units issuable pursuant to such rights, options or warrants; and | ||
| Y | = | the total number of WGP Common Units equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Daily VWAPs of WGP Common Units for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement for such issuance. | ||
Any increase made pursuant to this clause (ii) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the close of business on the Record Date for such issuance. In the event that such rights, options or warrants described in this clause (ii) are not so issued, each Fixed Settlement Rate shall be immediately readjusted, effective as of the date WGP’s general partner’s board of directors publicly announces its decision not to issue such rights, options or warrants, to such Fixed Settlement Rate that would then be in effect if such issuance had not been declared. To the extent that such rights, options or warrants are not exercised prior to their expiration or WGP Common Units are otherwise not delivered pursuant to such rights, options or warrants upon the exercise of such rights, options or warrants, each Fixed Settlement Rate shall be immediately readjusted, effective as of the date of such expiration or the date of such exercise, as the case may be, to such Fixed Settlement Rate that would then be in effect had the adjustment with respect to the issuance of such rights, options or warrants been made on the basis of the delivery of only the number of WGP Common Units actually delivered.
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In determining whether any rights, options or warrants entitle the holders of WGP Common Units to subscribe for or purchase WGP Common Units at less than such average of the Daily VWAPs of WGP Common Units for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate price payable to exercise such rights, options or warrants, there shall be taken into account any consideration received by WGP for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
For the purposes of this clause (ii), the number of WGP Common Units at the time outstanding shall not include WGP Common Units held in treasury by WGP but shall include any WGP Common Units issuable in respect of any scrip certificates issued in lieu of fractions of WGP Common Units. The Company shall cause WGP not to issue any such rights, options or warrants in respect of WGP Common Units held in treasury by WGP.
(iii) The dividend or other distribution to all or substantially all holders of WGP Common Units of units of equity securities of WGP (other than WGP Common Units), evidences of WGP’s indebtedness, WGP’s assets or rights, options or warrants to acquire equity securities of WGP, indebtedness or assets (excluding (1) any dividend, distribution or issuance as to which an adjustment was effected pursuant to Section 5.01(a)(i) or Section 5.01(a)(ii), (2) any dividend or distribution paid exclusively in cash as to which the provisions set forth in Section 5.01(a)(iv) shall apply and (3) Spin-Offs as to which the provisions set forth below in this Section 5.01(a)(iii) shall apply), in which event each Fixed Settlement Rate shall be increased based on the following formula:
| SR1 = SR0 × | SP0 |
|||||
| SP0 – FMV |
where,
| SR0 | = | the Fixed Settlement Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution; | ||
| SR1 | = | the Fixed Settlement Rate in effect immediately after the close of business on such Record Date; | ||
| SP0 | = | the average of the Daily VWAPs of WGP Common Units for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such dividend or distribution; and | ||
| FMV | = | the Fair Market Value, on the Ex-Date for such dividend or distribution, of the units of equity securities of WGP, evidences of WGP’s indebtedness, WGP’s assets or rights, options or warrants so distributed, expressed as an amount per WGP Common Unit. | ||
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If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above) or if the difference between SP0 and FMV is less than $1.00, in lieu of the foregoing adjustment, provision shall be made for each Holder of a Unit or Separate Purchase Contract to receive, for each Unit or Separate Purchase Contract, at the same time and upon the same terms as holders of WGP Common Units, the kind and amount of equity securities of WGP, evidences of WGP’s indebtedness, WGP’s assets or rights, options or warrants that such Holder would have received if such Holder owned a number of WGP Common Units equal to the Maximum Settlement Rate in effect on the Record Date for the dividend or distribution.
Any increase made pursuant to the portion of this clause (iii) above shall become effective immediately after the close of business on the Record Date for such dividend or distribution. In the event that such dividend or distribution is not so paid or made, each Fixed Settlement Rate shall be readjusted, effective as of the date WGP’s general partner’s board of directors publicly announces its decision not to pay or make such dividend or distribution, to such Fixed Settlement Rate that would then be in effect if such dividend or distribution had not been declared.
If the transaction that gives rise to an adjustment pursuant to this Section 5.01(a)(iii) is a Spin-Off, then each Fixed Settlement Rate shall instead be increased based on the following formula:
| SR1 = SR0 × |
FMV0 + MP0 |
|||||
| MP0 |
where,
| SR0 | = | the Fixed Settlement Rate in effect immediately prior to the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off; | ||
| SR1 | = | the Fixed Settlement Rate in effect immediately after the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off; | ||
| FMV0 | = | the average of the Daily VWAPs of the Capital Stock or similar equity interests distributed to holders of WGP Common Units applicable to one WGP Common Unit for the 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off; and | ||
| MP0 | = | the average of the Daily VWAPs of the WGP Common Units for the 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off. | ||
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Any increase made pursuant to this portion of this clause (iii) shall become effective immediately after the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off; provided that, if any date for determining the number of WGP Common Units deliverable to a Holder occurs during the 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off, references in the preceding paragraph to 10 consecutive Trading Days shall be deemed to be replaced with such lesser number of consecutive Trading Days as have elapsed between the beginning of the 10 consecutive Trading Day period and such determination date for purposes of determining the Fixed Settlement Rates. In the event that such distribution described in this clause (iii) is not so made, each Fixed Settlement Rate shall be readjusted, effective as of the date WGP’s general partner’s board of directors publicly announces its decision not to pay such distribution, to such Fixed Settlement Rate that would then be in effect if such distribution had not been declared.
For purposes of this Section 5.01(a)(iii) (and subject in all respect to Section 5.01(b)), rights, options or warrants distributed by WGP to all holders of WGP Common Units entitling them to subscribe for or purchase units of equity securities of WGP, including WGP Common Units (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such WGP Common Units; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of WGP Common Units, shall be deemed not to have been distributed for purposes of this Section 5.01(a)(iii) (and no adjustment to the Fixed Settlement Rates under this Section 5.01(a)(iii) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Fixed Settlement Rates shall be made under this Section 5.01(a)(iii). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Fixed Settlement Rates under this Section 5.01(a)(iii) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Fixed Settlement Rates shall be readjusted as if such rights, options or warrants had not been issued and (y) the Fixed
49
Settlement Rates shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per WGP Common Unit redemption or purchase price received by a holder or holders of WGP Common Units with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of WGP Common Units as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Fixed Settlement Rates shall be readjusted as if such rights, options and warrants had not been issued.
For purposes of Section 5.01(a)(i), Section 5.01(a)(ii) and this Section 5.01(a)(iii), if any dividend or distribution to which this Section 5.01(a)(iii) is applicable also includes one or both of:
(A) a dividend or distribution of WGP Common Units to which Section 5.01(a)(i) is applicable (the “Clause I Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 5.01(a)(ii) is applicable (the “Clause II Distribution”),
then, in either case, (1) such dividend or distribution, other than the Clause I Distribution and the Clause II Distribution, shall be deemed to be a dividend or distribution to which this Section 5.01(a)(iii) is applicable (the “Clause III Distribution”) and any Fixed Settlement Rate adjustment required by this Section 5.01(a)(iii) with respect to such Clause III Distribution shall then be made, and (2) the Clause I Distribution and Clause II Distribution shall be deemed to immediately follow the Clause III Distribution and any Fixed Settlement Rate adjustment required by Section 5.01(a)(i) and Section 5.01(a)(ii) with respect thereto shall then be made, except that, if determined by the Company (I) the “Record Date” of the Clause I Distribution and the Clause II Distribution shall be deemed to be the Record Date of the Clause III Distribution and (II) any WGP Common Units included in the Clause I Distribution or Clause II Distribution shall be deemed not to be “outstanding immediately prior to the close of business on such Record Date” within the meaning of Section 5.01(a)(i) or “outstanding immediately prior to the close of business on such Record Date” within the meaning of Section 5.01(a)(ii).
(iv) The dividend or distribution to all or substantially all holders of WGP Common Units of exclusively cash, other than a regular, quarterly cash dividend that does not exceed $0.3425 per WGP Common Unit (the “Initial Dividend Threshold”), in which event, each Fixed Settlement Rate shall be adjusted based on the following formula:
| SR1 = SR0 × |
SP0 – T |
|||||
| SP0 – C |
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where,
| SR0 | = | the Fixed Settlement Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution; | ||
| SR1 | = | the Fixed Settlement Rate in effect immediately after the close of business on the Record Date for such dividend or distribution; | ||
| SP0 | = | the average of the Daily VWAPs of WGP Common Units over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such dividend or distribution; | ||
| T | = | the Initial Dividend Threshold; provided that if the dividend or distribution is not a regular, quarterly cash dividend, the Initial Dividend Threshold shall be deemed to be zero; and | ||
| C | = | the amount in cash per WGP Common Unit that WGP distributes to holders of WGP Common Units. | ||
The Initial Dividend Threshold shall be subject to adjustment in a manner inversely proportional to adjustments to the Fixed Settlement Rates; provided that no adjustment shall be made to the Initial Dividend Threshold for any adjustment to the Fixed Settlement Rates pursuant to this Section 5.01(a)(iv).
If “C” (as defined above) is equal to or greater than “SP0” (as defined above) or if the difference between SP0 and C is less than $1.00, in lieu of the foregoing adjustment, provision shall be made for each Holder of a Unit or Separate Purchase Contract to receive, for each Unit or Separate Purchase Contract, at the same time and upon the same terms as holders of WGP Common Units, the amount of cash that such Holder would have received if such Holder owned a number of WGP Common Units equal to the Maximum Settlement Rate on the Record Date for such cash dividend or distribution.
Any increase made pursuant to this clause (iv) shall become effective immediately after the close of business on the Record Date for such dividend or distribution. In the event that any dividend or distribution described in this clause (iv) is not so made, each Fixed Settlement Rate shall be readjusted, effective as of the date WGP’s general partner’s board of directors publicly announces its decision not to pay such dividend or distribution, to such Fixed Settlement Rate which would then be in effect if such dividend or distribution had not been declared.
(v) The purchase by the Company, WGP or one or more Subsidiaries of the Company or WGP of WGP Common Units pursuant to a tender offer or exchange offer by the Company, WGP or one of the Company’s or WGP’s Subsidiaries for WGP Common Units if the amount of cash and value of any other consideration included in the payment per WGP Common Unit validly tendered or exchanged exceeds the average of the Daily VWAP per WGP Common Unit for the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the
51
“Tender Offer Expiration Date”), in which event each Fixed Settlement Rate shall be increased based on the following formula:
|
SR1 = SR0 × |
FMV + (SP1 × OS1) |
|||||
| (OS0 x SP1) |
where,
| SR0 | = | the Fixed Settlement Rate in effect immediately prior to the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Tender Offer Expiration Date; | ||
| SR1 | = | the Fixed Settlement Rate in effect immediately after the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Tender Offer Expiration Date; | ||
| FMV | = | the Fair Market Value of the aggregate value of all cash and any other consideration paid or payable for WGP Common Units purchased in such tender offer or exchange offer; | ||
| OS1 | = | the number of WGP Common Units outstanding immediately after the last time tenders or exchanges may be made pursuant to such tender offer or exchange offer on the Tender Offer Expiration Date (the “Tender Offer Expiration Time”) (after giving effect to such tender offer or exchange offer); | ||
| OS0 | = | the number of WGP Common Units outstanding immediately prior to the Tender Offer Expiration Time (prior to giving effect to such tender offer or exchange offer); and | ||
| SP1 | = | the average of the Daily VWAPs of the WGP Common Units for the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Tender Offer Expiration Date. | ||
Any increase made pursuant to this clause (v) shall become effective immediately after the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Tender Offer Expiration Date; provided that, if any date for determining the number of WGP Common Units deliverable to a Holder occurs during the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Tender Offer Expiration Date, references in the preceding paragraph to 10 consecutive Trading Days shall be deemed to be replaced with such lesser number of consecutive Trading Days as have elapsed between such Tender Offer Expiration Date and such determination date for the purposes of determining the Fixed Settlement Rates. If the Company, WGP or one of the Company’s or WGP’s Subsidiaries is obligated to purchase WGP Common Units pursuant to any such tender offer or exchange offer, but the Company, WGP or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then each Fixed Settlement Rate shall be readjusted to such Fixed Settlement Rate that would then be in effect if such tender offer or exchange offer had not been made.
52
(b) Rights Plans. To the extent that WGP has a rights plan in effect with respect to WGP Common Units on any date for determining the Applicable Market Value or Early Settlement Market Value of WGP Common Units or the Unit Price, Holders shall receive, in addition to the WGP Common Units, the rights under such rights plan, unless (i) the Company has made an APC Settlement Election or (ii) prior to such determination date, the rights have separated from the WGP Common Units. If such rights have so separated from the WGP Common Units, each Fixed Settlement Rate shall be adjusted at the time of such separation as if WGP made a distribution to all holders of WGP Common Units pursuant to Section 5.01(a)(iii), subject to readjustment in the event of the expiration, termination or redemption of such rights.
(c) Discretionary Adjustments. The Company may make such increases in each Fixed Settlement Rate, in addition to any other increases required by this Article 5, as the Board of Directors deems in the Company’s best interest; provided that the same proportionate adjustment must be made to each Fixed Settlement Rate.
(d) Calculation of Adjustments. All adjustments to each Fixed Settlement Rate shall be calculated to the nearest 1/10,000th of a WGP Common Unit. No adjustment in a Fixed Settlement Rate shall be required unless such adjustment would require an increase or decrease of at least 1.0% therein. If any adjustment is not required to be made by reason of this Section 5.01(d), then such adjustment shall be carried forward and taken into account in any subsequent adjustment; provided that on any date for determining any Daily VWAP or the number of WGP Common Units deliverable or shares of APC Stock issuable to a Holder, adjustments to the Fixed Settlement Rates shall be made with respect to any such adjustment carried forward that has not been taken into account before such determination date.
(e) Adjustments to Prices. Upon each adjustment to the Fixed Settlement Rates pursuant to Section 5.01, an inversely proportional adjustment shall also be made to the Reference Price. Such adjustment shall be made by dividing the Reference Price by a fraction, the numerator of which shall be the Minimum Settlement Rate immediately after such adjustment pursuant to Section 5.01 and the denominator of which shall be such Minimum Settlement Rate immediately before such adjustment. For the avoidance of doubt, no separate inversely proportional adjustment shall be made to the Threshold Appreciation Price, because the Threshold Appreciation Price is equal to the Stated Amount divided by the Minimum Settlement Rate (such quotient rounded to the nearest $0.0001), as adjusted in the manner described herein. Whenever any provision herein requires the Company to calculate the Daily VWAPs of WGP Common Units over a span of multiple days, the Company shall make appropriate adjustments, if any, to the relevant Daily VWAPs of WGP Common Units to account for any adjustment to the Fixed Settlement Rates that becomes effective, or any issuance date, Record Date, Ex-Date, effective date or Tender Offer Expiration Date relating to a required adjustment to the Fixed Settlement Rates that occurs, at any time during the period when the Daily VWAPs of WGP Common Units are to be calculated.
(f) Limitation on Adjustments. No adjustment to the Fixed Settlement Rates shall be made if Holders of Units or any Separate Purchase Contracts may participate in the transaction
53
(per Unit or per Purchase Contract, as the case may be, based on the Maximum Settlement Rate) that would otherwise give rise to an adjustment at the same time and on the same terms as holders of WGP Common Units without having to settle the Purchase Contracts. In addition, except as set forth above, the Fixed Settlement Rates shall not be adjusted for the issuance of WGP Common Units or any securities convertible into or exchangeable for WGP Common Units or carrying the right to purchase any of the foregoing, or for the repurchase of WGP Common Units. The Fixed Settlement Rates shall not be adjusted:
(i) upon the issuance of any WGP Common Units pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on WGP’s securities and the investment of additional optional amounts in WGP Common Units under any plan;
(ii) upon the issuance of any WGP Common Units, restricted stock or restricted stock units or rights, options or warrants to purchase those WGP Common Units pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company, WGP or any of the Company’s or WGP’s Subsidiaries;
(iii) upon the issuance of any WGP Common Units pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the Issue Date;
(iv) upon the repurchase of any WGP Common Units pursuant to an open market share repurchase program or other buy-back transaction that is not a tender offer or exchange offer of the nature described in Section 5.01(a)(v);
(v) for the sale or issuance of WGP Common Units, or securities convertible into or exercisable for WGP Common Units, for cash, including at a price per WGP Common Units less than the Fair Market Value thereof or otherwise or in an acquisition, except as described in one of Section 5.01(a)(i) through Section 5.01(a)(v) above;
(vi) for a third party tender offer (other than as described in Section 5.01(a)(v) above); or
(vii) for a change in the par value of WGP Common Units.
(g) Notice of Adjustment. Whenever the Fixed Settlement Rates are adjusted, the Company shall:
(i) prepare and transmit to the Purchase Contract Agent an Officers’ Certificate setting forth such adjusted Fixed Settlement Rates, the adjusted Early Settlement Rate and the adjusted Fundamental Change Early Settlement Rates, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based;
54
(ii) within ten Business Days following the occurrence of an event that requires an adjustment to the Fixed Settlement Rates, the Early Settlement Rate and the Fundamental Change Early Settlement Rates, provide, or cause to be provided, a written notice to the Holders of the occurrence of such event, which notice may be made by a press release; and
(iii) within ten Business Days following the determination of such adjusted Fixed Settlement Rates, Early Settlement Rate and Fundamental Change Early Settlement Rates provide, or cause to be provided, to the Holders a statement setting forth in reasonable detail the method by which the adjustment to such Fixed Settlement Rates, Early Settlement Rate and Fundamental Change Early Settlement Rates was determined and setting forth such adjusted Fixed Settlement Rates, Early Settlement Rate and Fundamental Change Early Settlement Rates and the facts requiring such adjustment and upon which such adjustment is based, which notice may be made by a press release.
(h) Adjustments to Deliveries. Following the exercise of any Early Settlement Right or Fundamental Change Early Settlement Right and prior to the occurrence of the related Early Settlement Date or Fundamental Change Early Settlement Date (including, without limitation, prior to the availability of an effective Registration Statement and a related Prospectus if required under U.S. federal securities laws), the Company shall increase the number of WGP Common Units that it is obligated to deliver upon any Early Settlement of a Purchase Contract (including after determination of the Early Settlement Rate or Fundamental Change Early Settlement Rate) upon the occurrence of any event or transaction described in Section 5.01(a)(i) through Section 5.01(a)(v) (at the same time as the related adjustment to the Fixed Settlement Rates and determined as if the Initial Dividend Threshold were equal to zero) such that the Holder with respect to such Early Settlement Date or Fundamental Change Early Settlement Date receives a number of additional WGP Common Units (in excess of the Early Settlement Rate or Fundamental Change Early Settlement Rate as originally determined) determined by the Board of Directors in good faith with a value equal to the value of the consideration that such Holder would have received in connection with such event or transaction if it had held a number of WGP Common Units equal to the Early Settlement Rate or Fundamental Change Early Settlement Rate as originally determined (for the avoidance of doubt, unless such Holder participates in such event or transaction (per Unit or per Purchase Contract, as the case may be, based on such Early Settlement Rate or Fundamental Change Early Settlement Rate, as the case may be, as it may have been adjusted to such time) that would otherwise give rise to such adjustment at the same time and on the same terms as holders of WGP Common Units).
Section 5.02. Reorganization Events. (a) In the event of:
(i) any merger of WGP with or into or consolidation of WGP with any other entity (other than a merger or consolidation in which WGP is the continuing or surviving corporation and in which the WGP Common Units outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of WGP or another Person);
(ii) any sale, assignment, transfer, lease or conveyance of all or substantially all of WGP’s properties and assets to any other Person or entity;
55
(iii) any recapitalization, reclassification or change of WGP Common Units into securities including securities other than WGP Common Units; or
(iv) any statutory exchange of WGP’s securities with another Person (other than in connection with a merger or acquisition),
in each case, as a result of which the WGP Common Units would be converted into, or exchanged for, securities, cash and/or other property (each, a “WGP Reorganization Event”), then at and after the effective time of the WGP Reorganization Event, each Purchase Contract outstanding shall, without the consent of Holders, become a contract to purchase the kind and amount of securities, cash and/or other property that a holder of WGP Common Units would have been entitled to receive in connection with such WGP Reorganization Event (such securities, cash and other property, the “WGP Exchange Property” with each “Unit of WGP Exchange Property” being the kind and amount of WGP Exchange Property that a holder of one WGP Common Unit would have received in such WGP Reorganization Event), subject to the Company’s right to make an APC Settlement Election. Prior to or at the effective time of such WGP Reorganization Event, the Company shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of WGP Exchange Property in the case of any WGP Reorganization Event that causes the WGP Common Units to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of equityholder election) shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of WGP Common Units that affirmatively make such an election. The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after the determination of such weighted average is made.
Such supplemental agreement described in the immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any WGP Reorganization Event, the WGP Exchange Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing Person, as the case may be, in such WGP Reorganization Event, then such supplemental agreement shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event of:
(i) any merger of the Company with or into or consolidation of the Company with any other entity (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the APC Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, assignment, transfer, lease or conveyance of all or substantially all of the properties and assets of the Company to any other Person or entity;
56
(iii) any recapitalization, reclassification or change of APC Stock into securities including securities other than APC Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition),
in each case, as a result of which the APC Stock would be converted into, or exchanged for, securities, cash and/or other property (each, an “Anadarko Reorganization Event”), then at and after the effective time of the Anadarko Reorganization Event, the Company’s ability to settle the Purchase Contracts in APC Stock upon an APC Settlement Election shall, without the consent of Holders, become a right to elect to settle each Purchase Contract in the kind and amount of securities, cash and/or other property that a holder of APC Stock would have been entitled to receive in connection with such Anadarko Reorganization Event (such securities, cash and other property, the “APC Exchange Property” with each “Unit of APC Exchange Property” being the kind and amount of APC Exchange Property that a holder of one share of APC Stock would have received in such Anadarko Reorganization Event). Prior to or at the effective time of such Anadarko Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement providing for such change in the right to settle the Purchase Contracts in APC Stock upon an APC Settlement Election. For purposes of the foregoing, the type and amount of APC Exchange Property in the case of any Anadarko Reorganization Event that causes the APC Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of equityholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of APC Stock that affirmatively make such an election. The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after the determination of such weighted average is made.
Such supplemental agreement described in the immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in Section 5.03. If, in the case of any Anadarko Reorganization Event, the APC Exchange Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing Person, as the case may be, in such Anadarko Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(c) The number of Units of WGP Exchange Property or Units of APC Exchange Property, as the case may be, that the Company shall cause to be delivered for each Purchase Contract settled following the effective date of such WGP Reorganization Event or Anadarko Reorganization Event, as the case may be, shall be equal to the number of WGP Common Units or shares of APC Stock, as the case may be, that the Company would otherwise be required to deliver as determined by the Fixed Settlement Rates then in effect on the applicable Determination Date or such other settlement rates as provided herein. The Daily VWAPs shall be determined based upon the applicable Market Value of a Unit of WGP Exchange Property that a holder of one WGP Common Unit would have received in such WGP Reorganization Event or of a Unit of APC Exchange Property that a holder of one share of APC Stock would have received in such Anadarko Reorganization Event, as the case may be.
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The “Market Value” of a Unit of Exchange Property shall be determined, on any date of determination, with respect to (A) any publicly traded securities that comprises all or part of the Exchange Property, based (to the extent practicable) on the volume-weighted average price of such securities on such date, (B) any cash that composes all or part of the Exchange Property, based on the amount of such cash and (C) any other property (including any publicly traded securities for which determining a volume-weighted average price is not practicable) that composes all or part of the Exchange Property, based on the value of such property on such date, as determined, in each case, by a nationally recognized independent investment banking firm retained by the Company for this purpose. At and after the effective time of any WGP Reorganization Event, references to WGP Common Units in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the WGP Exchange Property. At and after the effective time of any Anadarko Reorganization Event, references to APC Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the APC Exchange Property.
(d) The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the applicable Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(e) None of the provisions of this Section 5.02 shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of any Reorganization Event.
(f) The above provisions of Section 5.02(a) and Section 5.02(b) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any Capital Stock of WGP (or any successor) or the Company (or any successor) received by the holders of WGP Common Units or APC Stock, as the case may be, in any such Reorganization Event.
(g) In connection with any WGP Reorganization Event, the Initial Dividend Threshold shall be subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case may be.
(i) In the case of a WGP Reorganization Event in which the WGP Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of shares of Common Equity (the “Merger Common Equity”), the Initial Dividend Threshold at and after the effective time of such WGP Reorganization Event will be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such WGP Reorganization Event, divided by (y) the number of shares of Merger Common Equity that a holder of one WGP Common Unit would receive in such WGP Reorganization Event (such quotient rounded down to the nearest cent).
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(ii) In the case of a WGP Reorganization Event in which the WGP Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed in part of shares of Merger Common Equity, the Initial Dividend Threshold at and after the effective time of such WGP Reorganization Event will be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such WGP Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such WGP Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a WGP Reorganization Event in which the WGP Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares of Common Equity, the Initial Dividend Threshold at and after the effective time of such WGP Reorganization Event will be equal to zero.
Section 5.03. APC Anti-dilution Adjustments. (a) If any event occurs with respect to the Company or the APC Stock that would require an adjustment to the Fixed Settlement Rates pursuant to Section 5.01 if such event had occurred with respect to WGP or WGP Common Units (with the provisions of Section 5.01 read as if references to WGP Common Units were references to shares of APC Stock, references to WGP were references to the Company, and the Initial Dividend Threshold were equal to zero), then an adjustment corresponding to the adjustment that would be made to the Fixed Settlement Rates shall be made to the Share Cap.
(b) Whenever any provision herein requires the Company to calculate the Daily VWAPs of APC Stock over a span of multiple days, the Company shall make appropriate adjustments, if any, to the relevant Daily VWAPs of APC Stock to account for any event that requires an adjustment pursuant to Section 5.03(a) (including, for the avoidance of doubt, any cash dividend or distribution made to all or substantially all holders of APC Stock following the exercise of any Early Settlement Right or Fundamental Change Early Settlement Right and prior to actual delivery of APC Stock) that becomes effective, or any issuance date, Record Date, Ex-Date, effective date or Tender Offer Expiration Date relating to a required adjustment pursuant to Section 5.03(a) that occurs, at any time during the period when the Daily VWAPs of APC Stock are to be calculated.
ARTICLE 6
CONCERNING THE HOLDERS OF PURCHASE CONTRACTS
Section 6.01. Evidence of Action Taken by Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by a specified percentage of number of Purchase Contracts may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Holders in Person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are
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delivered to the Purchase Contract Agent. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to Section 8.01 and Section 8.03) conclusive in favor of the Purchase Contract Agent and the Company, if made in the manner provided in this Article 6.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities. Subject to Section 8.01 and Section 8.03, the execution of any instrument by a Holder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the Person executing the same.
(b) The ownership of the Units and the Purchase Contracts shall be proved by the Security Register or by a certificate of the Security Registrar.
Section 6.03. Purchase Contracts Deemed Not Outstanding. In determining whether the Holders of the requisite number of Outstanding Purchase Contracts have concurred in any direction, consent or waiver under this Agreement, Purchase Contracts which are owned by the Company or by any Affiliate of the Company with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding Purchase Contracts for the purpose of any such determination, except that for the purpose of determining whether the Purchase Contract Agent shall be protected in relying on any such direction, consent or waiver only Purchase Contracts which a Responsible Officer of the Purchase Contract Agent knows are so owned shall be so disregarded. Purchase Contracts so owned which have been pledged in good faith may be regarded as Outstanding Purchase Contracts if the pledgee establishes to the satisfaction of the Purchase Contract Agent the pledgee’s right so to act with respect to such Purchase Contracts and that the pledgee is not the Company or any Affiliate of the Company. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Purchase Contract Agent in accordance with such advice. Upon request of the Purchase Contract Agent, the Company shall furnish to the Purchase Contract Agent promptly an Officers’ Certificate listing and identifying all Purchase Contracts, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 8.01 and Section 8.03, the Purchase Contract Agent shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Purchase Contracts not listed therein are Outstanding Purchase Contracts for the purpose of any such determination.
Section 6.04. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Purchase Contract Agent, as provided in Section 6.01, of the taking of any action by the Holders of the percentage of the number of Purchase Contracts specified in this Agreement in connection with such action, any Holder of a Purchase Contract the serial number of which is shown by the evidence to be included among the serial numbers of the Purchase
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Contracts the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article 6, revoke such action so far as it concerns such Purchase Contract; provided that such revocation shall not become effective until three Business Days after such filing. Except as aforesaid, any such action taken by the Holder of any Purchase Contract shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Purchase Contract and of any Purchase Contracts issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Purchase Contract. Any action taken by the Holders of the percentage of the number of Purchase Contracts specified in this Agreement in connection with such action shall be conclusively binding upon the Company, the Purchase Contract Agent, the Trustee and the Holders of all the Purchase Contracts affected by such action.
Section 6.05. Record Date for Consents and Waivers. The Company may, but shall not be obligated to, establish a record date for the purpose of determining the Persons entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders of Purchase Contracts. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and any such Persons, shall be entitled to give, make or take any such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holder remains a Holder after such record date; provided, however, that unless such waiver or consent is obtained from the Holders, or duly designated proxies, of the requisite number of Outstanding Purchase Contracts prior to the date which is the 120th day after such record date, any such waiver or consent previously given shall automatically and, without further action by any Holder be cancelled and of no further effect.
ARTICLE 7
REMEDIES
Section 7.01. Unconditional Right of Holders to Receive WGP Common Units or Shares of APC Stock. In accordance with and subject to the provisions of this Agreement, each Holder of a Purchase Contract (whether or not included in a Unit) shall have the right, which is absolute and unconditional, to receive the WGP Common Units or shares of APC Stock, as the case may be, pursuant to such Purchase Contract and to institute suit for the enforcement of any such right to receive the WGP Common Units or shares of APC Stock, as the case may be, and such right shall not be impaired without the consent of such Holder.
Section 7.02. Notice To Purchase Contract Agent; Limitation On Proceedings. Holders of not less than 25% of Outstanding Purchase Contracts, by notice given to the Purchase Contract Agent, may request that Purchase Contract Agent to institute proceedings with respect to a default relating to any covenant hereunder. No Holder of Purchase Contracts may institute any proceedings, judicial or otherwise, with respect to this Agreement or for any remedy hereunder, except in the case of failure of the Purchase Contract Agent, for 60 days, to act after the Purchase Contract Agent has received a written request to institute proceedings in respect of a default with respect to any covenant hereunder from the Holders of not less than 25% of the
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Outstanding Purchase Contracts, as well as an offer of security or indemnity reasonably satisfactory to the Purchase Contract Agent. This provision will not prevent any Holder of Purchase Contracts from instituting suit for the delivery of the WGP Common Units or shares of APC Stock, as the case may be, deliverable upon settlement of the Purchase Contracts on any Settlement Date.
Section 7.03. Restoration of Rights and Remedies. If any Holder or the Purchase Contract Agent has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder or the Purchase Contract Agent, then and in every such case, subject to any determination in such proceeding, the Company and such Holder or the Purchase Contract Agent shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had been instituted.
Section 7.04. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.10, no right or remedy herein conferred upon or reserved to the Holders or the Purchase Contract Agent is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 7.05. Delay or Omission Not Waiver. No delay or omission of any Holder or the Purchase Contract Agent to exercise any right or remedy upon a default hereunder shall impair any such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article or by law to the Holders or the Purchase Contract Agent may be exercised from time to time, and as often as may be deemed expedient, by such Holders or the Purchase Contract Agent.
Section 7.06. Undertaking for Costs. Each party to this Agreement agrees, and each Holder of a Purchase Contract, by its acceptance of such Purchase Contract shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Agreement, or in any suit against the Purchase Contract Agent for any action taken, suffered or omitted by it as Purchase Contract Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and costs against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section shall not be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Purchase Contract Agent or, if applicable, in any suit for the enforcement of the right to receive the WGP Common Units or shares of APC Stock, as the case may be, or other Exchange Property deliverable upon settlement of the Purchase Contracts.
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Section 7.07. Waiver of Stay or Execution Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or assume or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Purchase Contract Agent or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 7.08. Control by Majority. The Holders of not less than a majority in number of the Outstanding Purchase Contracts shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Purchase Contract Agent, or of exercising any trust or power conferred upon the Purchase Contract Agent; provided that the Purchase Contract Agent shall be entitled to security or indemnity reasonably satisfactory to it against any loss, liability or expense that it may incur in connection therewith. Notwithstanding the foregoing, the Purchase Contract Agent may refuse to follow any direction that is in conflict with any law or the Purchase Contract Agreement, that may involve it in personal liability, or that may be unduly prejudicial to the Holders of Purchase Contracts not joining in the action (it being understood that the Purchase Contract Agent does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders).
ARTICLE 8
THE PURCHASE CONTRACT AGENT AND TRUSTEE
Section 8.01. Certain Duties and Responsibilities. (a) Each of the Purchase Contract Agent and Trustee undertakes to perform, with respect to the Units and Purchase Contracts, such duties and only such duties as are specifically delegated to it and set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Purchase Contract Agent from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) the duties and obligations of the Purchase Contract Agent with respect to the Purchase Contracts shall be determined solely by the express provisions of this Agreement, and the Purchase Contract Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Purchase Contract Agent or the Trustee;
(ii) in the absence of bad faith on the part of the Purchase Contract Agent and/or the Trustee, as applicable, the Purchase Contract Agent and/or the Trustee, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Purchase Contract Agent and/or the Trustee, as applicable, and conforming to the requirements of this Agreement; but in the case of any such statements, certificates or
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opinions which by any provision hereof are specifically required to be furnished to the Purchase Contract Agent and/or the Trustee, the Purchase Contract Agent and/or the Trustee, as applicable, shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);
(iii) the Purchase Contract Agent and/or the Trustee, as applicable, shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Purchase Contract Agent and/or the Trustee, as applicable, unless it shall be proved that the Purchase Contract Agent was negligent in ascertaining the pertinent facts;
(iv) the Purchase Contract Agent and/or the Trustee, as applicable, shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 7.08 relating to the time, method and place of conducting any proceeding for any remedy available to the Purchase Contract Agent and/or the Trustee, as applicable, or exercising any right or power conferred upon the Purchase Contract Agent and/or the Trustee, as applicable, under this Agreement; and
(v) if a default occurs and is continuing, the Purchase Contract Agent and/or the Trustee, as applicable, shall be under no obligation to exercise any of its rights or powers under this Agreement at the request or direction of any of the Holders unless the Holders have offered to the Purchase Contract Agent and/or the Trustee, as applicable, security or indemnity reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(c) This Agreement shall not be deemed to create a fiduciary relationship under state or federal law between The Bank of New York Mellon Trust Company, N.A., in its capacity as the Purchase Contract Agent, and any Holder of any Equity-Linked Security.
None of the provisions contained in this Agreement shall require the Purchase Contract Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it. The Purchase Contract Agent and the Trustee shall not be required to give any bond or surety in respect of the performance of their respective powers or duties hereunder. Whether or not therein expressly so provided, every provision of this Agreement that in any way relates to the Purchase Contract Agent or the Trustee is subject to this Section 8.01.
Section 8.02. Notice of Default. Within 90 days after the occurrence of any default by the Company hereunder of which a Responsible Officer of the Purchase Contract Agent has actual knowledge, the Purchase Contract Agent shall transmit by mail to the Company and the Holders of Purchase Contracts, as their names and addresses appear in the Security Register, notice of such default hereunder, unless such Responsible Officer of the Purchase Contract Agent has actual knowledge that such default shall have been cured or waived. Except in the
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case of a default relating to a payment or delivery with respect to any Security, the Purchase Contract Agent may withhold such notice if and so long as a committee of its Responsible Officers in good faith determines that withholding such notice is in the interests of the Holders of the Securities.
Section 8.03. Certain Rights of Purchase Contract Agent. Subject to the provisions of Section 8.01:
(a) the Purchase Contract Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Purchase Contract Agent by a Board Resolution;
(c) the Purchase Contract Agent may consult with counsel of its selection and any advice of such counsel promptly confirmed in writing shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Purchase Contract Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request, order or direction of any of the Holders pursuant to the provisions of this Agreement (including, without limitation, pursuant to Section 7.02 or Section 7.08), unless such Holders shall have offered to the Purchase Contract Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Purchase Contract Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement;
(f) the Purchase Contract Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in number of the Outstanding Purchase Contracts; provided that, if the payment within a reasonable time to the Purchase Contract Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Purchase Contract Agent, not reasonably assured to the Purchase Contract Agent by the security afforded to it by the terms of this Agreement, the Purchase Contract Agent may require security or indemnity reasonably satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Purchase Contract Agent or any predecessor Purchase Contract Agent, shall be repaid by the Company upon demand;
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(g) the Purchase Contract Agent may execute any of the rights or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Purchase Contract Agent shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
(h) the Purchase Contract Agent shall not be charged with knowledge of any default with respect to a series of Securities unless either (i) a Responsible Officer of the Purchase Contract Agent assigned to the Corporate Trust Office of the Purchase Contract Agent (or any successor division or department of the Purchase Contract Agent) shall have actual knowledge of such default or (ii) written notice of such default shall have been given to a Responsible Officer of the Purchase Contract Agent by the Company or any Holder;
(i) the permissive rights of the Purchase Contract Agent hereunder shall not be construed as duties;
(j) the rights, privileges, protections, immunities and benefits given to the Purchase Contract Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Purchase Contract Agent and the Trustee (whether or not the Trustee is expressly referred to in connection with any such rights, privileges, protections, immunities and benefits) in each of their capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;
(k) each of the Purchase Contract Agent and the Trustee may request that the Company deliver an Officers’ Certificate setting forth the name of the individuals and/or titles of Officers authorized at such time to take specific actions pursuant to this Agreement, which Officers’ Certificate may be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such Officers’ Certificate previously delivered and not superseded; and
(l) neither the Purchase Contract Agent nor the Trustee shall be responsible for delays or failures in performance of its obligations hereunder resulting from acts beyond its reasonable control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters, or other unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, it being understood that each of the Purchase Contract Agent and the Trustee shall use reasonable best efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 8.04. Not Responsible for Recitals. The recitals contained herein and in the Certificates shall be taken as the statements of the Company and neither the Purchase Contract Agent nor the Trustee assumes any responsibility for their accuracy. Neither the Purchase Contract Agent nor the Trustee makes any representations as to the validity or sufficiency of either this Agreement or of the Purchase Contracts. Neither the Purchase Contract Agent nor the
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Trustee shall be accountable for the use or application by the Company of the proceeds in respect of the Purchase Contracts or any money paid to the Company or upon the Company’s direction under any provision of this Agreement. The Trustee and Purchase Contract Agent shall not at any time be under any duty or responsibility to any Holder (i) to perform any calculations or make any determinations under this Agreement or the Indenture, including with respect to the calculation or determination of any market values, references prices or unit prices (or any adjustments thereto), (ii) to determine the Fixed Settlement Rates (or any adjustments thereto), or whether any facts exist that may require any adjustment (including a Trigger Event) of the Fixed Settlement Rates, or (iii) with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in the Indenture provided to be employed, in making the same. The Trustee and Purchase Contract Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any WGP Common Units, shares of APC Stock or of any securities, property or cash that may at any time be issued or delivered hereunder or under the Indenture; and the Trustee and Purchase Contract Agent make no representations with respect thereto. Neither the Trustee nor the Purchase Contract Agent shall be responsible for any failure of the Company to issue, transfer or deliver any WGP Common Units or shares of APC Stock or stock certificates or other securities or property or cash on the Mandatory Settlement Date or any other date under this Agreement or the Indenture, or to comply with any of its covenants. Neither the Trustee nor the Purchase Contract Agent shall be responsible for determining whether any event contemplated by this Agreement or the Indenture has occurred that makes a Purchase Contract eligible for settlement or no longer eligible therefor until the Company has delivered to a Responsible Officer of the Trustee and the Purchase Contract Agent the notices with respect to the commencement or termination of such settlement rights, on which notices the Trustee and the Purchase Contract Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Purchase Contract Agent immediately after the occurrence of any such event or at such other times as shall be provided for in this Agreement and the Indenture.
Section 8.05. May Hold Units and Purchase Contracts. Any Security Registrar or any other agent of the Company, or the Purchase Contract Agent, the Trustee and any of their Affiliates, in their individual or any other capacity, may become the owner of Units, Separate Purchase Contracts and Separate Notes and may otherwise deal with the Company or any other Person with the same rights it would have if it were not Security Registrar or such other agent, or the Purchase Contract Agent. The Company may become the owner of Units, Separate Purchase Contracts and Separate Notes.
Section 8.06. Money Held in Custody. Money held by the Purchase Contract Agent in custody hereunder need not be segregated from other funds except to the extent required by law. The Purchase Contract Agent shall be under no obligation to invest or pay interest on any money received by it hereunder except as specifically agreed in writing with the Company.
Section 8.07. Compensation, Reimbursement and Indemnification. The Company covenants and agrees to pay to the Purchase Contract Agent from time to time, and the Purchase Contract Agent shall be entitled to, such compensation as shall be agreed to in writing between the Company and the Purchase Contract Agent and the Company covenants and agrees to pay or reimburse the Purchase Contract Agent and each predecessor Purchase Contract Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by or on
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behalf of it in accordance with any of the provisions of this Agreement (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence, bad faith or willful misconduct. The Company also covenants to indemnify the Purchase Contract Agent and each predecessor Purchase Contract Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including taxes (other than taxes based on the income of the Purchase Contract Agent), incurred without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this Agreement and performance of its duties hereunder, including the costs and expenses of defending itself against or investigating any claim or liability in the premises. The obligations of this Agreement under this Section 8.07 to compensate and indemnify the Purchase Contract Agent and each predecessor Purchase Contract Agent and to pay or reimburse the Purchase Contract Agent and each predecessor Purchase Contract Agent for expenses, disbursements and advances shall survive the satisfaction and discharge of this Agreement or the resignation or removal of the Purchase Contract Agent. If the Purchase Contract Agent incurs any expenses, or if the Purchase Contract Agent is entitled to any compensation for services rendered (including fees and expenses of its agent and counsel), in each case, in connection with the performance of its obligations under this Agreement after the occurrence of a Bankruptcy Event, then any such expenses or compensation are intended to constitute expenses of administration under applicable Bankruptcy Laws. To secure the Company’s payment obligations in this Section 8.07, the Purchase Contract Agent shall have a lien prior to the Securities on all money or property held or collected by the Purchase Contract Agent, and such lien shall survive the termination of this Agreement or the resignation or removal of the Purchase Contract Agent.
Section 8.08. Corporate Purchase Contract Agent Required; Eligibility. There shall at all times be a Purchase Contract Agent hereunder. The Purchase Contract Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any state thereof or the District of Columbia having a combined capital and surplus of at least $25,000,000, and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by federal, state or District of Columbia authority, or a corporation or other Person permitted to act as trustee by the Commission. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Purchase Contract Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Article.
Section 8.09. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Purchase Contract Agent and no appointment of a successor Purchase Contract Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Purchase Contract Agent in accordance with the applicable requirements of Section 8.10.
(b) The Purchase Contract Agent may resign at any time by giving written notice thereof to the Company 60 days prior to the effective date of such resignation. If the instrument
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of acceptance by a successor Purchase Contract Agent required by Section 8.10 shall not have been delivered to the Purchase Contract Agent within 30 days after the giving of such notice of resignation, the resigning Purchase Contract Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by the Holders of a majority in number of the Outstanding Purchase Contracts. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 8.10 shall not have been delivered to the Purchase Contract Agent within 30 days after evidence of such removal is delivered to the Company and Purchase Contract Agent, the removed Purchase Contract Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.
(d) If at any time:
(i) the Purchase Contract Agent shall cease to be eligible under Section 8.08 and shall fail to resign after written request therefor by the Company or by any such Holder; or
(ii) the Purchase Contract Agent shall be adjudged bankrupt or insolvent or a receiver of the Purchase Contract Agent or of its property shall be appointed or any public officer shall take charge or control of the Purchase Contract Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (x) the Company by a Board Resolution may remove the Purchase Contract Agent, or (y) any Holder who has been a bona fide Holder of a Purchase Contract for at least six months (or since the date of this Agreement) may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Purchase Contract Agent and the appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Purchase Contract Agent for any cause, the Company shall promptly appoint a successor Purchase Contract Agent and shall comply with the applicable requirements of Section 8.10. If no successor Purchase Contract Agent shall have been so appointed by the Company and accepted appointment in the manner required by Section 8.10, any Holder who has been a bona fide Holder of a Purchase Contract for at least six months (or since the date of this Agreement), on behalf of itself and all others similarly situated, or the Purchase Contract Agent may petition at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase Contract Agent to give, notice of each resignation and each removal of the Purchase Contract Agent and each appointment of a successor Purchase Contract Agent by mailing written notice of such event by first-class mail, postage prepaid, to Holders as their names and addresses appear in the applicable Security Register. Each notice shall include the name of the successor Purchase Contract Agent and the address of its Corporate Trust Office.
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Section 8.10. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Purchase Contract Agent, every such successor Purchase Contract Agent so appointed shall execute, acknowledge and deliver to the Company and to the retiring Purchase Contract Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Purchase Contract Agent shall become effective and such successor Purchase Contract Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Purchase Contract Agent. At the request of the Company or the successor Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon its receipt of payment or reimbursement of any amounts due to it hereunder, execute and deliver an instrument transferring to such successor Purchase Contract Agent all the rights, powers and trusts of the retiring Purchase Contract Agent and shall duly assign, transfer and deliver to such successor Purchase Contract Agent all property and money held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Purchase Contract Agent all such rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Purchase Contract Agent shall accept its appointment unless at the time of such acceptance such successor Purchase Contract Agent shall be qualified and eligible under this Article.
Section 8.11. Merger; Conversion; Consolidation or Succession to Business. Any corporation into which the Purchase Contract Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Purchase Contract Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Purchase Contract Agent, shall be the successor of the Purchase Contract Agent hereunder; provided that such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. If any Equity-Linked Securities shall have been authenticated on behalf of the Holders by the Trustee and Purchase Contract Agent then in office, but not delivered, any successor by merger, conversion or consolidation to such Purchase Contract Agent may adopt such Purchase Contract Agent’s authentication and deliver the Equity-Linked Securities so authenticated with the same effect as if such successor Purchase Contract Agent had itself authenticated such Equity-Linked Securities. Any successor to the Trustee under the Indenture shall without further act succeed as Trustee under this Agreement.
Section 8.12. Preservation of Information; Communications to Holders. (a) The Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders as received by the Purchase Contract Agent in its capacity as Security Registrar.
(b) If three or more Holders (such three or more Holders, the “Applicants”) apply in writing to the Purchase Contract Agent, and furnish to the Purchase Contract Agent reasonable proof that each such Applicant has owned a Unit or Separate Purchase Contract for a period of at
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least six months preceding the date of such application (or since the date of this Agreement), and such application states that the Applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Units or Separate Purchase Contracts and is accompanied by a copy of the form of proxy or other communication that such Applicants propose to transmit, then the Purchase Contract Agent shall mail to all the Holders copies of the form of proxy or other communication that is specified in such request, with reasonable promptness after a tender to the Purchase Contract Agent of the materials to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing.
Section 8.13. Tax Compliance. (a) The Purchase Contract Agent shall comply with all applicable certification, information reporting and withholding (including “backup” withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to (i) any WGP Common Units or shares of APC Stock delivered upon settlement of the Purchase Contracts, any amounts paid in lieu of fractional WGP Common Units or fractional shares of APC Stock upon settlement of the Purchase Contracts, and any other amounts included in the Purchase Contract Settlement Fund paid to Holders upon settlement of any Purchase Contracts or (ii) the issuance, delivery, holding, transfer or exercise of rights under the Purchase Contracts. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent.
(b) The Purchase Contract Agent shall, in accordance with the terms hereof, comply with any written direction received from the Company with respect to the execution or certification of any required documentation and the application of such requirements to particular payments or Holders or in other particular circumstances, and may for purposes of this Agreement conclusively rely on any such direction in accordance with the provisions of Section 8.01(b)(ii).
(c) The Purchase Contract Agent shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on written request, to the Company or its authorized representative within a reasonable period of time after receipt of such request. For the avoidance of doubt, any costs or expenses incurred by the Purchase Contract Agent in connection with complying with its obligations under this Section 8.13 shall be covered by Section 8.07.
ARTICLE 9
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of Holders. Without the consent of any Holders, the Company, the Purchase Contract Agent and the Trustee at any time and from time to time, may enter into one or more agreements supplemental hereto, in form satisfactory to the Company and the Purchase Contract Agent, to:
(i) evidence the succession of another Person to the Company’s obligations, and the assumption by any such successor of the covenants and obligations of the Company under this Agreement and the Units and Separate Purchase Contracts, if any;
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(ii) add to the covenants for the benefit of Holders or to surrender any of the Company’s rights or powers hereunder;
(iii) evidence and provide for the acceptance of appointment of a successor Purchase Contract Agent;
(iv) upon the occurrence of a Reorganization Event, solely (a) provide that each Purchase Contract shall become a contract to purchase WGP Exchange Property or APC Exchange Property, as applicable, and (b) effect the related changes to the terms of the Purchase Contracts, in each case, as required pursuant to Section 5.02(a) and Section 5.02(b);
(v) conform the terms of the Purchase Contracts or the provisions of this Agreement to the “Description of the purchase contracts” or “Description of the Units” sections in the Prospectus Supplement;
(vi) cure any ambiguity or manifest error, to correct or supplement any provisions that may be inconsistent, so long as such action does not adversely affect the interest of the Holders; or
(vii) make any other provisions with respect to such matters or questions, so long as such action does not adversely affect the interest of the Holders.
Section 9.02. Supplemental Agreements with Consent of Holders. With the consent of the Holders of not less than a majority in number of the Outstanding Purchase Contracts, the Company, when authorized by a Board Resolution, the Purchase Contract Agent and the Trustee may enter into an agreement or agreements supplemental hereto for the purpose of modifying in any manner the terms of the Purchase Contracts, or the provisions of this Agreement or the rights of the Holders in respect of the Purchase Contracts; provided, however, that, except as contemplated herein, no such supplemental agreement shall, without the consent of each Holder of an Outstanding Purchase Contract affected thereby:
(i) reduce the number of WGP Common Units deliverable or shares of APC Stock issuable, as the case may be, upon settlement of the Purchase Contracts (except to the extent expressly provided in Section 5.01);
(ii) change the Mandatory Settlement Date, the Early Settlement Right or the Fundamental Change Early Settlement Right;
(iii) reduce the above-stated percentage of Outstanding Purchase Contracts the consent of the Holders of which is required for the modification or amendment of the provisions of the Purchase Contracts or the Purchase Contract Agreement; or
(iv) impair the right to institute suit for the enforcement of the Purchase Contracts.
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It shall not be necessary for any consent of Holders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03. Execution of Supplemental Agreements. In executing, or accepting the additional agencies created by, any supplemental agreement permitted by this Article or the modifications thereby of the agencies created by this Agreement, the Purchase Contract Agent and Trustee shall be provided, and (subject to Section 8.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement and does not violate the Indenture, and that any and all conditions precedent to the execution and delivery of such supplemental agreement have been satisfied. The Purchase Contract Agent and Trustee may, but shall not be obligated to, enter into any such supplemental agreement that affects the Purchase Contract Agent’s or Trustee’s own rights, duties or immunities under this Agreement or otherwise.
Section 9.04. Effect of Supplemental Agreements. Upon the execution of any supplemental agreement under this Article, this Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of this Agreement for all purposes; and every Holder of Securities theretofore or thereafter authenticated on behalf of the Holders and delivered hereunder, shall be bound thereby.
Section 9.05. Reference to Supplemental Agreements. Securities authenticated on behalf of the Holders and delivered after the execution of any supplemental agreement pursuant to this Article may, and shall if required by the Purchase Contract Agent, bear a notation in form approved by the Purchase Contract Agent as to any matter provided for in such supplemental agreement. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Purchase Contract Agent, the Trustee and the Company, to any such supplemental agreement may be prepared and executed by the Company and authenticated on behalf of the Holders and delivered by the Purchase Contract Agent in exchange for outstanding Securities.
Section 9.06. Notice of Supplemental Agreements. After any supplemental agreement under this Article becomes effective, the Company shall mail to the Holders a notice briefly describing such supplemental agreement; provided, however, that the failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of such supplemental agreement.
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ARTICLE 10
CONSOLIDATION, MERGER, SALE, ASSIGNMENT, TRANSFER, LEASE OR CONVEYANCE
Section 10.01. Covenant Not to Consolidate, Merge, Sell, Assign, Transfer, Lease or Convey Property Except Under Certain Conditions. The Company covenants that it will not merge with or into or consolidate with any other Person or sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person or entity, unless:
(i) the resulting, surviving or transferee entity (if not the Company) is a corporation, partnership or trust organized and existing under the laws of any domestic or foreign jurisdiction, and such entity (if not the Company) expressly assumes in writing all of the Company’s obligations under the Units, the Purchase Contracts and this Agreement;
(ii) immediately after the merger, consolidation, sale, assignment, transfer, lease or conveyance, no default has occurred and is continuing under the Units, the Purchase Contracts or this Agreement; and
(iii) the Company has delivered to the Purchase Contract Agent the Officers’ Certificate and Opinion of Counsel required under Section 10.03.
Section 10.02. Rights and Duties of Successor Entity. In case of any such merger, consolidation, sale, assignment, transfer, lease or conveyance and upon any such assumption by a successor entity in accordance with Section 10.01, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company. Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Securities evidencing Units or Purchase Contracts issuable hereunder which theretofor shall not have been signed by the Company and delivered to the Purchase Contract Agent; and, upon the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Purchase Contract Agent and Trustee (if applicable) shall authenticate on behalf of the Holders and deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Purchase Contract Agent and Trustee for authentication, and any Security evidencing Units or Purchase Contracts that such successor corporation thereafter shall cause to be signed and delivered to the Purchase Contract Agent and Trustee for that purpose. All the Securities issued shall in all respects have the same legal rank and benefit under this Agreement as the Securities theretofor or thereafter issued in accordance with the terms of this Agreement as though all of such Securities had been issued at the date of the execution hereof.
In the event of any such merger, consolidation, sale, assignment, transfer, lease or conveyance, such change in phraseology and form (but not in substance) may be made in the Securities evidencing Units or Purchase Contracts thereafter to be issued as may be appropriate.
Section 10.03. Officers’ Certificate and Opinion of Counsel Given to Purchase Contract Agent. The Purchase Contract Agent, subject to Section 8.01 and Section 8.03, shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such merger, consolidation, sale, assignment, transfer, lease or conveyance, and any such assumption, complies with the provisions of this Article and that all conditions precedent to the consummation of any such merger, consolidation, sale, assignment, transfer, lease or conveyance have been complied with.
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ARTICLE 11
COVENANTS OF THE COMPANY
Section 11.01. Performance Under Purchase Contracts. The Company covenants and agrees for the benefit of the Holders from time to time of the Units and Purchase Contracts that it will duly and punctually perform its obligations under the Units and Purchase Contracts in accordance with the terms of the Units and Purchase Contracts and this Agreement.
Section 11.02. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, New York City, an office or agency where Securities may be presented or surrendered for acquisition of WGP Common Units or shares of APC Stock, as the case may be, deliverable upon settlement of the Purchase Contracts on any Settlement Date, and where notices and demands to or upon the Company in respect of the Purchase Contracts and this Agreement may be served. The Company shall give prompt written notice to the Purchase Contract Agent of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Purchase Contract Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Purchase Contract Agent as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, New York City, for such purposes. The Company shall give prompt written notice to the Purchase Contract Agent of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates as the place of payment for the Purchase Contracts the Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate Trust Office as paying agent in such city.
Section 11.03. Statements of Officers of the Company as to Default; Notice of Default. (a) The Company will deliver to the Purchase Contract Agent, within 120 days after the end of each fiscal year of the Company (which as of the Issue Date is December 31) ending after the date hereof, an Officers’ Certificate (one of the signers of which shall be the principal executive officer, principal financial officer or principal accounting officer of the Company), stating whether or not to the knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions hereof, and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge and what action the Company is taking or proposes to take with respect thereto.
(b) The Company shall promptly deliver to the Purchase Contract Agent written notice of the occurrence of any default in the performance and observance of any of the terms, provisions and conditions hereof and the status thereof.
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Section 11.04. Existence. The Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence in accordance with its organizational documents, and the material rights, licenses and franchises of the Company; provided that this Section 11.04 shall not prohibit any transaction otherwise permitted by Article 10.
Section 11.05. Company to Reserve APC Stock. The Company shall at all times reserve and keep available out of its authorized but unissued APC Stock, solely for issuance and delivery upon settlement of the Purchase Contracts, that number of shares of APC Stock as shall from time to time be issuable upon the settlement of all Outstanding Purchase Contracts (whether or not included in a Unit), assuming settlement per Purchase Contract at the Share Cap.
Section 11.06. Covenants as to APC Stock and Listing. (a) The Company covenants that all shares of APC Stock issuable upon settlement of any Outstanding Purchase Contract will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, free from all taxes, liens and charges and not subject to any preemptive rights.
The Company further covenants that, if at any time the APC Stock shall be listed on the NYSE or any other national securities exchange, the Company shall, if permitted by the rules of such exchange, list and keep listed or reserve for listing and keep reserved for listing, so long as the APC Stock shall be so listed on such exchange, all APC Stock issuable upon settlement of the Purchase Contracts.
(b) The Company shall apply to list the Units on the NYSE under the symbol “AEUA,” subject to satisfaction of the NYSE’s minimum listing standards with respect to the Units.
(c) The Company covenants that all WGP Common Units delivered upon settlement of the Purchase Contracts will have been approved for listing on the NYSE.
Section 11.07. Tax Treatment. The Company agrees, and by purchasing a Unit each Beneficial Holder agrees, for United States federal income tax purposes, to (a) treat a Unit as an investment unit composed of two separate instruments, a Purchase Contract and a Note, (b) treat each Purchase Contract as a prepaid forward contract to purchase a variable number of WGP Common Units or, at the Company’s election, shares of APC Stock on the Settlement Date, (c) treat the Notes as indebtedness of the Company and (d) in the case of each Beneficial Holder acquiring the Units at original issuance, allocate the Stated Amount of each Unit between the Note and the Purchase Contract in proportion to their relative fair market values so that such Beneficial Holder’s initial tax basis in each Note will be $10.9507 and each such Beneficial Holder’s initial tax basis in each Purchase Contract will be $39.0493.
Section 11.08. Foreign Reorganizations. The Company shall not consummate any Foreign Reorganization until the sixth Trading Day immediately following the Fundamental Change Early Settlement Date related to such Foreign Reorganization (or, if earlier, the third Trading Day immediately following the Mandatory Settlement Date).
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| ANADARKO PETROLEUM CORPORATION | ||
| By: | /s/ Albert L. Richey | |
| Name: | Albert L. Richey | |
| Title: | Senior Vice President, Finance and Treasurer | |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Purchase Contract Agent | ||
| By: | /s/ Lawrence M. Kusch | |
| Name: | Lawrence M. Kusch | |
| Title: | Vice President | |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee under the Indenture | ||
| By: | /s/ Lawrence M. Kusch | |
| Name: | Lawrence M. Kusch | |
| Title: | Vice President | |
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| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Attorney-in-Fact of the Holders from time to time as provided under the Purchase Contract Agreement | ||
| By: | /s/ Lawrence M. Kusch | |
| Name: | Lawrence M. Kusch | |
| Title: | Vice President | |
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EXHIBIT A
[FORM OF FACE OF UNIT]
[THIS SECURITY IS A GLOBAL UNIT WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (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 SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]*
| * | Include if a Global Unit. |
1
ANADARKO PETROLEUM CORPORATION
7.50% TANGIBLE EQUITY UNITS
| CUSIP No. 032511 404 | ||
| ISIN No. US0325114041 | ||
| No. | [Initial]* Number of Units |
This Unit certifies that [CEDE & CO., as nominee of The Depository Trust Company]*[ ]** (the “Holder”), or registered assigns, is the registered owner of the number of Units set forth above[, which number may from time to time be reduced or increased, as set forth on Schedule A, as appropriate, in accordance with the terms of the Purchase Contract Agreement (as defined below), but which number, taken together with the number of all other outstanding Units, shall not exceed 8,000,000 Units at any time (as increased by a number equal to the aggregate number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement)]*.
Each Unit consists of (i) a Purchase Contract issued by the Company, and (ii) a Note issued by the Company. Each Unit evidenced hereby is governed by a Purchase Contract Agreement, dated as of June 10, 2015 (as may be supplemented from time to time, the “Purchase Contract Agreement”), among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the Holders of Purchase Contracts from time to time (including its successors hereunder, the “Purchase Contract Agent”) and The Bank of New York Mellon Trust Company, N.A., as Trustee (including its successors hereunder, the “Trustee”) under the Indenture referred to therein (the “Indenture”).
Reference is hereby made to the Purchase Contract Agreement and the Indenture and, in each case supplemental agreements thereto, for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Trustee, the Company and the Holders and of the terms upon which the Units are, and are to be, executed and delivered.
Upon the conditions and under the circumstances set forth in the Purchase Contract Agreement, Holders of Units shall have the right to separate a Unit into its component parts, and a Holder of a Separate Purchase Contract and Separate Note shall have the right to re-create a Unit.
| * | Include only if a Global Unit. |
| ** | Include only if not a Global Unit. |
The Company agrees, and by purchasing a Unit each Beneficial Holder agrees, for United States federal income tax purposes, to (1) treat a Unit as an investment unit composed of two separate instruments, a Purchase Contract and a
2
Note, (2) treat each Purchase Contract as a prepaid forward contract to purchase a variable number of WGP Common Units or, at the Company’s election, APC Stock on the Settlement Date, (3) treat the Notes as indebtedness of the Company and (4) in the case of each Beneficial Holder acquiring the Units at original issuance, allocate the Stated Amount of each Unit between the Note and the Purchase Contract based on their relative fair market value so that such Beneficial Holder’s initial tax basis in each Note will be $10.9507 and each such Beneficial Holder’s initial tax basis in each Purchase Contract will be $39.0493.
The Units and the rights and obligations of the parties under the Units, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York.
Capitalized terms used herein and not defined have the meanings given to such terms in the Purchase Contract Agreement.
In the event of any inconsistency between the provisions of this Unit and the provisions of the Purchase Contract Agreement, the Purchase Contract Agreement shall prevail.
[SIGNATURES ON THE FOLLOWING PAGE]
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| ANADARKO PETROLEUM CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
4
UNIT CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT AND TRUSTEE UNDER THE
INDENTURE
This is one of the Units referred to in the within mentioned Purchase Contract Agreement.
Dated:
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Purchase Contract Agent | ||
| By: |
| |
| Authorized Signatory | ||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee under the Indenture | ||
| By: |
| |
| Authorized Signatory | ||
5
[FORM OF REVERSE OF UNIT]
[Intentionally Blank]
6
SCHEDULE A
[SCHEDULE OF INCREASES OR DECREASES IN NUMBER OF UNITS
EVIDENCED BY THIS GLOBAL UNIT]*
The initial number of Units evidenced by this Global Unit is [ ]. The following increases or decreases in this Global Unit have been made:
| Date |
Amount of increase in number of Units evidenced by the Global Unit |
Amount of decrease in number of Units evidenced by the Global Unit |
Number of Units evidenced by the Global Unit following such decrease or increase |
Signature of authorized signatory of Purchase Contract Agent | ||||
| * | Include only if a Global Unit. |
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ATTACHMENT 1
[FORM OF SEPARATION NOTICE]
The Bank of New York Mellon Trust Company, N.A.
111 Sanders Creek Parkway
East Syracuse, NY 13057
Attn: DWACs
Email: [email protected]
Re: Separation of [Global]* Units
The undersigned [Beneficial Holder]* hereby notifies you that it wishes to separate Units [as to which it holds a Book-Entry Interest]* (the “Relevant Units”) into a number of Notes equal to the number of Relevant Units and a number of Purchase Contracts equal to the number of Relevant Units in accordance with the Purchase Contract Agreement (the “Purchase Contract Agreement”) dated June 10, 2015 among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the Holders of Purchase Contracts from time to time and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture referred to therein. Terms used and not defined herein have the meaning assigned to such terms in the Purchase Contract Agreement.
The undersigned [includes herewith]** [Beneficial Holder has instructed the undersigned Depository Participant to transfer to you its Book-Entry Interests in]* the number of Units specified in the immediately succeeding paragraph. The undersigned [includes herewith]** [Beneficial Holder has furnished the undersigned Depository Participant with]* the appropriate endorsements and documents and paid all applicable transfer or similar taxes, if any, to the extent required by the Purchase Contract Agreement.
Please [deliver to the undersigned’s address specified below]** [transfer to the account of the undersigned Beneficial Holder with the undersigned Depositary Participant the beneficial interests in]* (i) the number of Separate Notes and (ii) number of Separate Purchase Contracts represented by the number of Units specified above.
[SIGNATURES ON THE FOLLOWING PAGE]
| * | Include only if a Global Unit. |
| ** | Include only if not a Global Unit. |
8
IN WITNESS WHEREOF, the [undersigned has caused this instrument to be duly executed]** [Depository Participant has caused this instrument to be duly executed on behalf of itself and the undersigned Beneficial Holder]*.
Dated:
| [NAME OF BENEFICIAL HOLDER] | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Address: | ||
|
| ||
| [NAME OF DEPOSITORY PARTICIPANT]* | ||
| By: |
| |
| Name: | ||
| Address: | ||
Attest By:
| * | Include only if a Global Unit. |
| ** | Include only if not a Global Unit. |
9
ATTACHMENT 2
[FORM OF RECREATION NOTICE]
The Bank of New York Mellon Trust Company, N.A.
111 Sanders Creek Parkway
East Syracuse, NY 13057
Attn: DWACs
Email: [email protected]
Re: Recreation of [Global]* Units
The undersigned [Beneficial Holder]* hereby notifies you that it wishes to recreate Units [as to which it holds a Book-Entry Interest]* (the “New Units”) from a number of Separate Notes equal to the number of New Units and a number of Separate Purchase Contracts equal to the number of New Units in accordance with the Purchase Contract Agreement (the “Purchase Contract Agreement”) dated as of June 10, 2015 among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the Holders of Purchase Contracts from time to time and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture referred to therein. Terms used and not defined herein have the meaning assigned to such terms in the Purchase Contract Agreement.
The undersigned [includes herewith]** [Beneficial Holder has instructed the undersigned Depository Participant to transfer to you its Book-Entry Interests in]* the applicable number of Separate Notes and the applicable number of Separate Purchase Contracts sufficient for the recreation of the number of Units specified above. The undersigned [includes herewith]** [Beneficial Holder has furnished the undersigned Depository Participant with]* the appropriate endorsements and documents and paid all applicable transfer or similar taxes, if any, to the extent required by the Purchase Contract Agreement.
Please [deliver to the undersigned’s address specified below]** [transfer to the account of the undersigned Beneficial Holder with the undersigned Depositary Participant the beneficial interests in]* the number of Units specified above.
[SIGNATURES ON THE FOLLOWING PAGE]
| * | Include only if a Global Unit. |
| ** | Include only if not a Global Unit. |
10
IN WITNESS WHEREOF, the [undersigned has caused this instrument to be duly executed]** [Depository Participant has caused this instrument to be duly executed on behalf of itself and the undersigned Beneficial Holder]*.
Dated:
| [NAME OF BENEFICIAL HOLDER] | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Address: | ||
|
| ||
| [NAME OF DEPOSITORY PARTICIPANT]* | ||
| By: |
| |
| Name: | ||
| Address: | ||
Attest By:
| * | Include only if a Global Unit. |
| ** | Include only if not a Global Unit. |
11
ATTACHMENT 3
ANADARKO PETROLEUM CORPORATION
PURCHASE CONTRACTS
| No. | Initial Number of Purchase Contracts: |
This Purchase Contract certifies that The Bank of New York Mellon Trust Company, N.A., as attorney-in-fact of holder(s) of the Purchase Contracts evidenced hereby, or its registered assigns (the “Holder”) is the registered owner of the number of Purchase Contracts set forth above, which number may from time to time be reduced or increased as set forth on Schedule A hereto, as appropriate, in accordance with the terms of the Purchase Contract Agreement (as defined below), but which number of Purchase Contracts, taken together with the number of all other Outstanding Purchase Contracts, shall not exceed 8,000,000 Purchase Contracts at any time (as increased by a number equal to the aggregate number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement).
Each Purchase Contract consists of the rights of the Holder under such Purchase Contract with the Company. All capitalized terms used herein which are defined in the Purchase Contract Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this Purchase Contract on the Mandatory Settlement Date a number of common units representing limited partner interests in Western Gas Equity Partners, LP (“WGP Common Units”) (subject to the Company’s right to elect to deliver shares of its common stock, par value $0.10 per share (“APC Stock”), in lieu of such WGP Common Units) equal to the Settlement Rate, unless such Purchase Contract has settled prior to the Mandatory Settlement Date, all as provided in the Purchase Contract Agreement and more fully described on the reverse hereof.
Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[SIGNATURES ON THE FOLLOWING PAGE]
12
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| ANADARKO PETROLEUM CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
Dated:
13
| REGISTERED HOLDER(S) (as to obligations of such holder(s) under the Purchase Contracts evidenced hereby)
By: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not individually but solely as Attorney-in-Fact of such holder(s) | ||
| By: |
| |
| Name: | ||
| Title: | ||
14
PURCHASE CONTRACT CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Purchase Contracts referred to in the within-mentioned Purchase Contract Agreement.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Purchase Contract Agent | ||
| By: |
| |
| Authorized Signatory | ||
Dated:
15
[REVERSE OF PURCHASE CONTRACT]
Each Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement, dated as of June 10, 2015 (as may be supplemented from time to time, the “Purchase Contract Agreement”), among Anadarko Petroleum Corporation, a Delaware corporation (the “Company”), The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the Holders of Purchase Contracts from time to time (including its successors hereunder, the “Purchase Contract Agent”) and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture referred to therein. Reference is hereby made to the Purchase Contract Agreement and supplemental agreements thereto for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Company and the Holders and of the terms upon which the Purchase Contracts are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this Purchase Contract, on the Mandatory Settlement Date, a number of WGP Common Units (subject to the Company’s right to elect to deliver shares of APC Stock in lieu of such WGP Common Units) equal to the Settlement Rate, unless such Purchase Contract has settled prior to the Mandatory Settlement Date, pursuant to the terms of the Purchase Contract Agreement.
No fractional WGP Common Units will be delivered, and no fractional shares of APC Stock will be issued and delivered upon settlement of Purchase Contracts, as provided in Section 4.13 of the Purchase Contract Agreement.
The Purchase Contracts are issuable only in registered form and only in denominations of a single Purchase Contract and any integral multiple thereof. The transfer of any Purchase Contract will be registered and Purchase Contracts may be exchanged as provided in the Purchase Contract Agreement.
The Purchase Contracts are initially being issued as part of the 7.50% Tangible Equity Units (the “Units”) issued by the Company pursuant to the Purchase Contract Agreement. Holders of the Units have the right to separate such Units into their constituent parts, consisting of Separate Notes and Separate Purchase Contracts, during the times, and under the circumstances, described in the Purchase Contract Agreement. Following separation of any Unit into its constituent parts, the Separate Purchase Contracts are transferable independently from the Separate Notes. In addition, Separate Purchase Contracts can be recombined with Separate Notes to recreate Units, as provided for in the Purchase Contract Agreement.
The Holder of this Purchase Contract, by its acceptance hereof, authorizes the Purchase Contract Agent to enter into and perform the Purchase Contract Agreement on its behalf as its attorney-in-fact and agrees to be bound by the terms and provisions thereof.
16
Subject to certain exceptions set forth in the Purchase Contract Agreement, the provisions of the Purchase Contract Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts.
The Purchase Contracts and the rights and obligations of the parties under the Purchase Contracts, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York.
The Company, the Purchase Contract Agent, and any agent of the Company or the Purchase Contract Agent, may treat the Person in whose name this Purchase Contract is registered as the owner of the Purchase Contracts, evidenced hereby, for the purpose of performance of the Purchase Contracts evidenced by such Purchase Contracts and for all other purposes whatsoever, and neither the Company nor the Purchase Contract Agent, nor any agent of the Company or the Purchase Contract Agent, shall be affected by notice to the contrary.
The Purchase Contracts shall not entitle the Holder to any of the rights of a holder of the WGP Common Units, the APC Stock or other Exchange Property, except as provided by the Purchase Contract Agreement.
Each Purchase Contract (whether or not included in a Unit) is a security governed by Article 8 of the Uniform Commercial Code as in effect in the State of New York on the date hereof.
A copy of the Purchase Contract Agreement is available for inspection at the offices of the Company.
In the event of any inconsistency between the provisions of this Purchase Contract and the provisions of the Purchase Contract Agreement, the Purchase Contract Agreement shall prevail.
17
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM: |
as tenants in common | |||||||||
| UNIF GIFT MIN ACT: |
_______________ | Custodian | _______________ | |||||||
| (cust) | (minor) | |||||||||
| Under Uniform Gifts to Minors | ||||||||||
| Act of |
| |||||||||
|
| ||||||||||
| TENANT: | as tenants by the entireties | |||||||||
| JT TEN: | as joint tenants with rights of survivorship and not as tenants in common | |||||||||
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Purchase Contracts and all rights thereunder, hereby irrevocably constituting and appointing attorney , to transfer said Purchase Contracts on the books of the Company with full power of substitution in the premises.
| DATED: | Signature |
| ||||
| Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within Purchase Contracts in every particular, without alteration or enlargement or any change whatsoever. | ||||||
| Signature Guarantee: |
|
|||||
18
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for WGP Common Units, shares of APC Stock or other securities, as applicable, deliverable upon settlement of the number of Purchase Contracts evidenced by this Purchase Contract be registered in the name of, and delivered, and/or a check in payment for the cash deliverable upon settlement of such Purchase Contracts (including for any fractional WGP Common Unit or fractional share of APC Stock) be paid, to the undersigned at the address indicated below unless a different name and address have been indicated below. If WGP Common Units, shares of APC Stock or other securities, as applicable, are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incidental thereto, as provided in the Purchase Contract Agreement.
| Dated: |
| |||||||||
| Signature | ||||||||||
| Signature Guarantee: |
|
|||||||||
| (if assigned to another Person) | ||||||||||
If securities are to be registered in the name of and delivered to (or cash is to be paid to) a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:
|
|
| |||
| Name | Name | |||
| Address | Address | |||
|
|
| |||
|
|
| |||
| Social Security or other Taxpayer |
| |||
| Identification Number, if any | ||||
19
ELECTION TO SETTLE EARLY
The undersigned Holder of this Purchase Contract hereby irrevocably exercises the option to effect Early Settlement (which Early Settlement may, as applicable, be deemed to be in connection with a Fundamental Change pursuant to Section 4.07 of the Purchase Contract Agreement) in accordance with the terms of the Purchase Contract Agreement with respect to the Purchase Contracts evidenced by this Purchase Contract as specified below. The undersigned Holder directs that a certificate for WGP Common Units, shares of APC Stock or other securities, as applicable, deliverable upon such Early Settlement be registered in the name of, and delivered, and/or a check in payment for the cash deliverable upon such Early Settlement (including for any fractional WGP Common Unit or fractional share of APC Stock) be paid, together with any Purchase Contract representing any Purchase Contracts evidenced hereby as to which Early Settlement is not effected, to the undersigned at the address indicated below unless a different name and address have been indicated below. If WGP Common Units, shares of APC Stock or other securities, as applicable, are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto, as provided in the Purchase Contract Agreement.
| Dated: |
| |||||||
| Signature | ||||||||
| Signature Guarantee: |
|
|||||||
20
Number of Purchase Contracts evidenced hereby as to which Early Settlement is being elected:
| If WGP Common Units, shares of APC Stock or other securities are to be registered in the name of and delivered to a Person other than the Holder, please print such Person’s name and address: | REGISTERED HOLDER | |||
| Please print name and address of Registered Holder: | ||||
|
|
| |||
| Name | Name | |||
| Address | Address | |||
|
|
| |||
|
|
| |||
| Social Security or other Taxpayer |
| |||
| Identification Number, if any |
||||
21
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES
IN THE NUMBER OF PURCHASE CONTRACTS
EVIDENCED BY THIS PURCHASE CONTRACT
The initial number of Purchase Contracts evidenced by this certificate is . The following increases or decreases in this certificate have been made:
| Date |
Amount of increase in number of Purchase Contracts evidenced hereby |
Amount of decrease in number of Purchase Contracts evidenced hereby |
Number of Purchase Contracts evidenced hereby following such decrease or increase |
Signature of authorized signatory of Purchase Contract Agent | ||||
22
ATTACHMENT 4
ANADARKO PETROLEUM CORPORATION
1.50% SENIOR AMORTIZING NOTES DUE 2018
| No. |
Initial Number of Notes: |
ANADARKO PETROLEUM CORPORATION, a Delaware corporation (the “Company”, which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to The Bank of New York Mellon Trust Company, N.A., as attorney-in-fact of holder(s) of the Notes evidenced hereby, or its registered assigns (the “Holder”), the initial principal amount of $10.9507 for each of the number of Notes set forth above, which number of Notes may from time to time be reduced or increased as set forth in Schedule A hereto, as appropriate, in accordance with the terms of the Indenture, but which number of Notes, taken together with the number of all other Outstanding Notes, shall not exceed 8,000,000 Notes at any time (as increased by a number of Notes equal to the number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement), in equal quarterly installments (except for the first such payment) (each such payment, an “Installment Payment,” constituting a payment of interest at the rate per year of 1.50% and a partial repayment of principal) payable on each March 7, June 7, September 7 and December 7, commencing on September 7, 2015 (each such date, an “Installment Payment Date” and the period from, and including, June 10, 2015 to, but excluding, the first Installment Payment Date and each subsequent full quarterly period from, and including, an Installment Payment Date to, but excluding, the immediately succeeding Installment Payment Date, an “Installment Payment Period”), all as set forth on the reverse hereof, with the final Installment Payment due and payable on June 7, 2018.
The Installment Payment on any Installment Payment Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months. If an Installment Payment for any period shorter or longer than a full Installment Payment Period, such Installment Payment shall be computed on the basis of the number of days elapsed per 30-day month. In the event that any Installment Payment Date is not a Business Day, then payment of the Installment Payment on such date will be made on the next succeeding day that is a Business Day, and without any interest or other payment in respect of any such delay. Installment Payments shall be paid to the Person in whose name the Note is registered at the close of business on February 23, May 23, August 23 and November 23, as applicable (each, a “Regular Record Date”). Installment Payments on this Note will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of
23
America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Note in the case of the Installment Payment due on the Maturity Date; provided, however, that if this Note is not a Global Note, (i) Installment Payments, other than the final Installment Payment, will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; and the final Installment Payment will be made by check against surrender of this Note; (ii) all payments by check will be made in next-day funds (i.e., funds that become available on the day after the check is cashed); and (iii) notwithstanding clauses (i) and (ii) above, with respect to any payment of any amount due on this Note, if this Note has an initial principal amount of at least $1,000,000 and the Holder hereof at the time of surrender hereof or, in the case of any Installment Payment other than the final Installment Payment, the Holder thereof on the related Regular Record Date delivers a written request to the Paying Agent to make such Installment Payment by wire transfer at least five Business Days before the date such payment becomes due, together with appropriate wire transfer instructions specifying an account at a bank in New York, New York, the Company shall make such payment by wire transfer of immediately available funds to such account at such bank in New York City, any such wire instructions, once properly given by a Holder as to this Note, remaining in effect as to such Holder and this Note unless and until new instructions are given in the manner described above; provided further, that notwithstanding anything in the foregoing to the contrary, if this Note is a Global Note, payment shall be made pursuant to the Applicable Procedures of the Depositary as permitted in the Indenture.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to or be valid or obligatory for any purpose until the Certificate of Authentication shall have been manually signed by or on behalf of the Trustee.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will for all purposes have the same effect as if set forth at this place.
[SIGNATURES ON THE FOLLOWING PAGE]
24
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| ANADARKO PETROLEUM CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, certifies that this is one of the Notes of the series designated herein referred to in the within mentioned Indenture. | ||
| Dated: | ||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
25
REVERSE OF NOTE
ANADARKO PETROLEUM CORPORATION
1.50% Senior Amortizing Notes due 2018
This Note is one of a duly authorized series of Securities of the Company designated as its 1.50% Senior Amortizing Notes due 2018 (herein sometimes referred to as the “Notes”), issued under the Indenture for Debt Securities, dated as of September 19, 2006, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee,” which term includes any successor trustee under the Indenture) (including any provisions of the Trust Indenture Act that are deemed incorporated therein) (the “Base Indenture”), as supplemented by the Third Supplemental Indenture, dated as of June 10, 2015 (the “Third Supplemental Indenture”), between the Company and the Trustee (the Base Indenture and, as supplemented by the Third Supplemental Indenture, the “Indenture”), to which Indenture reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders. The terms of other series of Securities issued under the Base Indenture may vary with respect to interest rates, issue dates, maturity, redemption, repayment, currency of payment and otherwise as provided in the Base Indenture. The Indenture further provides that Securities of a single series may be issued at various times, with different maturity dates and may bear interest at different rates. This series of Securities is limited in aggregate principal amount as specified in the Third Supplemental Indenture.
Each Installment Payment shall constitute a payment of interest (at an annual rate of 1.50%) and a partial repayment of principal on the Notes, allocated with respect to each Note as set forth in the schedule below:
| Installment Payment Date |
Amount of Principal | Amount of Interest | ||||||
| September 7, 2015 |
$ | 0.8666 | $ | 0.0397 | ||||
| December 7, 2015 |
$ | 0.8997 | $ | 0.0378 | ||||
| March 7, 2016 |
$ | 0.9031 | $ | 0.0344 | ||||
| June 7, 2016 |
$ | 0.9064 | $ | 0.0311 | ||||
| September 7, 2016 |
$ | 0.9098 | $ | 0.0277 | ||||
| December 7, 2016 |
$ | 0.9133 | $ | 0.0242 | ||||
| March 7, 2017 |
$ | 0.9167 | $ | 0.0208 | ||||
| June 7, 2017 |
$ | 0.9201 | $ | 0.0174 | ||||
| September 7, 2017 |
$ | 0.9236 | $ | 0.0139 | ||||
| December 7, 2017 |
$ | 0.9270 | $ | 0.0105 | ||||
| March 7, 2018 |
$ | 0.9305 | $ | 0.0070 | ||||
| June 7, 2018 |
$ | 0.9340 | $ | 0.0035 | ||||
The Notes shall not be subject to redemption at the option of the Company.
26
This Note is not entitled to the benefit of any sinking fund. The Base Indenture contains provisions in Articles IV and XIII thereof for the satisfaction and discharge of the Indenture and for defeasance and covenant defeasance at any time of the indebtedness on this Note upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be continuing, then (unless no declaration of acceleration or notice is required for such Event of Default) either the Trustee or the Holders of not less than 25% in principal amount of the Notes then Outstanding may declare the principal amount of the Notes, plus accrued but unpaid interest thereon, to be due and payable immediately, in the manner, subject to the conditions and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee, with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding, to execute supplemental indentures for certain purposes as described therein.
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 Installment Payments on this Note at the time, place and rate, and in the coin or currency, herein and in the Indenture prescribed.
The Notes are originally being issued as part of the 7.50% Tangible Equity Units (the “Units”) issued by the Company pursuant to that certain Purchase Contract Agreement, dated as of June 10, 2015, among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the holders of Purchase Contracts from time to time and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture (the “Purchase Contract Agreement”). Holders of the Units have the right to separate such Units into their constituent parts, consisting of Separate Purchase Contracts (as defined in the Purchase Contract Agreement) and Separate Notes, during the times, and under the circumstances, described in the Purchase Contract Agreement. Following separation of any Unit into its constituent Separate Note and Separate Purchase Contract, the Separate Notes are transferable independently from the Separate Purchase Contracts. In addition, Separate Notes can be recombined with Separate Purchase Contracts to recreate Units, as provided for in the Purchase Contract Agreement. Reference is hereby made to the Purchase Contract Agreement for a more complete description of the terms thereof applicable to the Units and Notes.
The Notes are initially issued in registered, global form without coupons in denominations initially equal to $10.9507 and integral multiples in excess thereof.
27
This Note and the Indenture, and the rights and obligations of the parties hereto and thereto, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York.
Capitalized terms used but not defined in this Note shall have the meanings ascribed to such terms in the Indenture.
The Company and each Holder agree, for United States federal income tax purposes, to treat the Notes as indebtedness of the Company.
In the event of any inconsistency between the provisions of this Note and the provisions of the Indenture, the Indenture shall prevail.
28
ASSIGNMENT
| FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to: | ||
|
| ||
| (Insert assignee’s social security or tax identification number) | ||
|
| ||
| (Insert address and zip code of assignee) | ||
| and irrevocably appoints |
| |
| agent to transfer this Note on the books of the Company. The agent may substitute another to act for him or her. | ||
Date:
| Signature: |
|
| Signature Guarantee: |
|
(Sign exactly as your name appears on the other side of this Note)
29
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
| By: |
| |
| Name: | ||
| Title: | ||
|
| ||
| as Trustee | ||
| By: |
| |
| Name: | ||
| Title: |
Attest
| By: |
| |
| Name: | ||
| Title: |
30
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN NUMBER OF NOTES
EVIDENCED BY THIS GLOBAL NOTE
The initial number of Notes evidenced by this Global Note is . The following increases or decreases in this Global Note have been made:
| Date |
Amount of decrease in number of Notes evidenced hereby |
Amount of increase in number of Notes evidenced hereby |
Number of Notes evidenced hereby following such decrease (or increase) |
Signature of authorized officer of Trustee | ||||
31
EXHIBIT B
[FORM OF FACE OF PURCHASE CONTRACT]
[THIS SECURITY IS A GLOBAL PURCHASE CONTRACT WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (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 SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]*
| * | Include only if a Global Purchase Contract. |
1
ANADARKO PETROLEUM CORPORATION
PURCHASE CONTRACTS
CUSIP No. 032511 123
ISIN No. US0325111237
| No. | [Initial]* Number of Purchase Contracts: |
This Purchase Contract certifies that [CEDE & CO., as nominee of The Depository Trust Company]* [ ]**, or its registered assigns (the “Holder”) is the registered owner of the number of Purchase Contracts set forth above[, which number may from time to time be reduced or increased as set forth on Schedule A hereto, as appropriate, in accordance with the terms of the Purchase Contract Agreement (as defined below), but which number of Purchase Contracts, taken together with the number of all other Outstanding Purchase Contracts, shall not exceed 8,000,000 Purchase Contracts at any time (as increased by a number equal to the aggregate number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement)]*.
Each Purchase Contract consists of the rights of the Holder under such Purchase Contract with the Company. All capitalized terms used herein which are defined in the Purchase Contract Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this Purchase Contract on the Mandatory Settlement Date a number of common units representing limited partner interests in Western Gas Equity Partners, LP (“WGP Common Units”) (subject to the Company’s right to elect to deliver shares of its common stock, par value $0.10 per share (“APC Stock”), in lieu of such WGP Common Units) equal to the Settlement Rate, unless such Purchase Contract has settled prior to the Mandatory Settlement Date, all as provided in the Purchase Contract Agreement and more fully described on the reverse hereof.
Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[SIGNATURES ON THE FOLLOWING PAGE]
| * | Include only if a Global Purchase Contract. |
| ** | Include only if not a Global Purchase Contract. |
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| ANADARKO PETROLEUM CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
Dated:
3
| REGISTERED HOLDER(S) (as to | ||
| obligations of such holder(s) under the Purchase Contracts evidenced hereby) | ||
| By: | THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not individually but solely as Attorney-in-Fact of such holder(s) | |
| By: |
| |
| Name: | ||
| Title: | ||
4
PURCHASE CONTRACT CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Purchase Contracts referred to in the within-mentioned Purchase Contract Agreement.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Purchase Contract Agent | ||
| By: |
| |
| Authorized Signatory | ||
Dated:
5
[REVERSE OF PURCHASE CONTRACT]
Each Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement, dated as of June 10, 2015 (as may be supplemented from time to time, the “Purchase Contract Agreement”), among Anadarko Petroleum Corporation, a Delaware corporation (the “Company”), The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the Holders of Purchase Contracts from time to time (including its successors hereunder, the “Purchase Contract Agent”) and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture referred to therein. Reference is hereby made to the Purchase Contract Agreement and supplemental agreements thereto for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Company and the Holders and of the terms upon which the Purchase Contracts are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this Purchase Contract, on the Mandatory Settlement Date, a number of WGP Common Units (subject to the Company’s right to elect to deliver shares of APC Stock in lieu of such WGP Common Units) equal to the Settlement Rate, unless such Purchase Contract has settled prior to the Mandatory Settlement Date, pursuant to the terms of the Purchase Contract Agreement.
No fractional WGP Common Units will be delivered, and no fractional shares of APC Stock will be issued and delivered upon settlement of Purchase Contracts, as provided in Section 4.13 of the Purchase Contract Agreement.
The Purchase Contracts are issuable only in registered form and only in denominations of a single Purchase Contract and any integral multiple thereof. The transfer of any Purchase Contract will be registered and Purchase Contracts may be exchanged as provided in the Purchase Contract Agreement.
The Purchase Contracts are initially being issued as part of the 7.50% Tangible Equity Units (the “Units”) issued by the Company pursuant to the Purchase Contract Agreement. Holders of the Units have the right to separate such Units into their constituent parts, consisting of Separate Notes and Separate Purchase Contracts, during the times, and under the circumstances, described in the Purchase Contract Agreement. Following separation of any Unit into its constituent parts, the Separate Purchase Contracts are transferable independently from the Separate Notes. In addition, Separate Purchase Contracts can be recombined with Separate Notes to recreate Units, as provided for in the Purchase Contract Agreement.
The Holder of this Purchase Contract, by its acceptance hereof, authorizes the Purchase Contract Agent to enter into and perform the Purchase Contract Agreement on its behalf as its attorney-in-fact and agrees to be bound by the terms and provisions thereof.
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Subject to certain exceptions set forth in the Purchase Contract Agreement, the provisions of the Purchase Contract Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts.
The Purchase Contracts and the rights and obligations of the parties under the Purchase Contracts, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York.
The Company, the Purchase Contract Agent, and any agent of the Company or the Purchase Contract Agent, may treat the Person in whose name this Purchase Contract is registered as the owner of the Purchase Contracts, evidenced hereby, for the purpose of performance of the Purchase Contracts evidenced by such Purchase Contracts and for all other purposes whatsoever, and neither the Company nor the Purchase Contract Agent, nor any agent of the Company or the Purchase Contract Agent, shall be affected by notice to the contrary.
The Purchase Contracts shall not entitle the Holder to any of the rights of a holder of the WGP Common Units, the APC Stock or other Exchange Property, except as provided by the Purchase Contract Agreement.
Each Purchase Contract (whether or not included in a Unit) is a security governed by Article 8 of the Uniform Commercial Code as in effect in the State of New York on the date hereof.
A copy of the Purchase Contract Agreement is available for inspection at the offices of the Company.
In the event of any inconsistency between the provisions of this Purchase Contract and the provisions of the Purchase Contract Agreement, the Purchase Contract Agreement shall prevail.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM: | as tenants in common | |||||||||
| UNIF GIFT MIN ACT: | _______________ | Custodian | _______________ | |||||||
| (cust) | (minor) | |||||||||
| Under Uniform Gifts to Minors | ||||||||||
| Act of |
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| TENANT: | as tenants by the entireties | |||||||||
| JT TEN: | as joint tenants with rights of survivorship and not as tenants in common | |||||||||
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Purchase Contracts and all rights thereunder, hereby irrevocably constituting and appointing attorney , to transfer said Purchase Contracts on the books of the Company with full power of substitution in the premises.
| DATED: | Signature |
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| Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within Purchase Contracts in every particular, without alteration or enlargement or any change whatsoever. | ||||||
| Signature Guarantee: |
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8
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for WGP Common Units, shares of APC Stock or other securities, as applicable, deliverable upon settlement of the number of Purchase Contracts evidenced by this Purchase Contract be registered in the name of, and delivered, and/or a check in payment for the cash deliverable upon settlement of such Purchase Contracts (including for any fractional WGP Common Unit or fractional share of APC Stock) be paid, to the undersigned at the address indicated below unless a different name and address have been indicated below. If WGP Common Units, shares of APC Stock or other securities, as applicable, are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incidental thereto, as provided in the Purchase Contract Agreement.
| Dated: |
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| Signature | ||||||||||
| Signature Guarantee: |
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| (if assigned to another Person) | ||||||||||
If securities are to be registered in the name of and delivered to (or cash is to be paid to) a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:
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| Name | Name | |||
| Address | Address | |||
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| Social Security or other Taxpayer |
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| Identification Number, if any | ||||
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ELECTION TO SETTLE EARLY
The undersigned Holder of this Purchase Contract hereby irrevocably exercises the option to effect Early Settlement (which Early Settlement may, as applicable, be deemed to be in connection with a Fundamental Change pursuant to Section 4.07 of the Purchase Contract Agreement) in accordance with the terms of the Purchase Contract Agreement with respect to the Purchase Contracts evidenced by this Purchase Contract as specified below. The undersigned Holder directs that a certificate for WGP Common Units, shares of APC Stock or other securities, as applicable, deliverable upon such Early Settlement be registered in the name of, and delivered, and/or a check in payment for the cash deliverable upon such Early Settlement (including for any fractional WGP Common Unit or fractional share of APC Stock) be paid, together with any Purchase Contract representing any Purchase Contracts evidenced hereby as to which Early Settlement is not effected, to the undersigned at the address indicated below unless a different name and address have been indicated below. If WGP Common Units, shares of APC Stock or other securities, as applicable, are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto, as provided in the Purchase Contract Agreement.
| Dated: |
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| Signature | ||||||||
| Signature Guarantee: |
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Number of Purchase Contracts evidenced hereby as to which Early Settlement is being elected:
| If WGP Common Units, shares of APC Stock or other securities are to be registered in the name of and delivered to a Person other than the Holder, please print such Person’s name and address: |
REGISTERED HOLDER | |||
| Please print name and address of Registered Holder: | ||||
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| Name | Name | |||
| Address | Address | |||
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| Social Security or other Taxpayer |
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| Identification Number, if any | ||||
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SCHEDULE A
[SCHEDULE OF INCREASES OR DECREASES
IN THE NUMBER OF PURCHASE CONTRACTS
EVIDENCED BY THIS PURCHASE CONTRACT]*
The initial number of Purchase Contracts evidenced by this certificate is . The following increases or decreases in this certificate have been made:
| Date |
Amount of increase in number of Purchase Contracts evidenced hereby |
Amount of decrease in number of Purchase Contracts evidenced hereby |
Number of Purchase Contracts evidenced hereby following such decrease or increase |
Signature of authorized signatory of Purchase Contract Agent | ||||
| * | Include only if a Global Purchase Contract. |
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Exhibit 4.2
ANADARKO PETROLEUM CORPORATION
1.50% Senior Amortizing Notes due 2018
Third Supplemental Indenture
Dated as of June 10, 2015
Supplement to Indenture for Debt Securities Dated as of September 19, 2006
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
TABLE OF CONTENTS
| PAGE | ||||||
| ARTICLE 1 SCOPE OF SUPPLEMENTAL INDENTURE; GENERAL |
| |||||
| Section 1.01. |
Scope of Supplemental Indenture; General |
2 | ||||
| ARTICLE 2 CERTAIN DEFINITIONS |
| |||||
| Section 2.01. |
Certain Definitions |
2 | ||||
| Section 2.02. |
Rules of Construction |
5 | ||||
| ARTICLE 3 | ||||||
| COVENANTS | ||||||
| Section 3.01. |
Reports |
6 | ||||
| Section 3.02. |
Applicability of Covenants Contained in the Base Indenture |
6 | ||||
| ARTICLE 4 | ||||||
| DEFAULTS AND REMEDIES | ||||||
| Section 4.01. |
Amendments to the Base Indenture. |
6 | ||||
| ARTICLE 5 | ||||||
| DISCHARGE | ||||||
| Section 5.01. |
Amendment to Base Indenture |
6 | ||||
| ARTICLE 6 | ||||||
| THE NOTES | ||||||
| Section 6.01. |
Form of Notes |
7 | ||||
| Section 6.02. |
Installment Payments |
7 | ||||
| Section 6.03. |
Maturity Date |
9 | ||||
| Section 6.04. |
Depositary |
9 | ||||
| Section 6.05. |
Certificated Notes |
9 | ||||
| ARTICLE 7 | ||||||
| REDEMPTION / SINKING FUNDS | ||||||
| Section 7.01. |
Inapplicable Provisions of Base Indenture |
10 | ||||
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| ARTICLE 8 | ||||||
| TAX TREATMENT | ||||||
| Section 8.01. |
Tax Treatment |
10 | ||||
| ARTICLE 9 | ||||||
| AMENDMENTS, SUPPLEMENTS AND WAIVERS | ||||||
| Section 9.01. |
Base Indenture |
10 | ||||
| Section 9.02. |
Amendments Without Consent of Holders |
10 | ||||
| Section 9.03. |
Amendments with Consent of Holders |
11 | ||||
| Section 9.04. |
Notice of Supplemental Indentures |
12 | ||||
| ARTICLE 10 | ||||||
| MISCELLANEOUS | ||||||
| Section 10.01. |
Governing Law |
12 | ||||
| Section 10.02. |
No Adverse Interpretation of Other Agreements |
12 | ||||
| Section 10.03. |
Successors and Assigns |
12 | ||||
| Section 10.04. |
Counterparts |
12 | ||||
| Section 10.05. |
Separability Clause |
13 | ||||
| Section 10.06. |
Effect of Headings |
13 | ||||
| Section 10.07. |
Conflict of Any Provision of Indenture with the Trust Indenture Act |
13 | ||||
| Section 10.08. |
Ratification of Indenture |
13 | ||||
| Section 10.09. |
Waiver of Jury Trial |
13 | ||||
| Section 10.10. |
Concerning The Trustee |
13 | ||||
| Section 10.11. |
FATCA |
14 | ||||
| EXHIBIT: |
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| A. | Form of Note |
ii
THIRD SUPPLEMENTAL INDENTURE dated as of June 10, 2015 (“Supplemental Indenture”) between ANADARKO PETROLEUM CORPORATION, a Delaware corporation, as issuer (the “Company”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), supplementing an Indenture for Debt Securities dated as of September 19, 2006 between the Company and the Trustee (the “Base Indenture” and, as supplemented by this Supplemental Indenture, the “Indenture”).
RECITALS OF THE COMPANY:
WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of the Company’s unsecured senior debt securities (the “Securities”);
WHEREAS, the Company desires and has requested the Trustee to join it in the execution and delivery of this Supplemental Indenture in order to establish and provide for the issuance by the Company of a series of Securities designated as its 1.50% Senior Amortizing Notes due 2018 (the “Notes,” and each $10.9507 of initial principal amount of such Securities, a “Note”), substantially in the form attached hereto as Exhibit A, on the terms set forth herein;
WHEREAS, the Company now wishes to issue Notes in an initial aggregate principal amount of $87,605,600 (as increased by an amount equal to the Initial Principal Amount multiplied by the number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement), each Note initially to be issued as a component of the Units (as defined herein) being issued on the date hereof by the Company pursuant to the Purchase Contract Agreement, dated as of June 10, 2015, among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the holders of Purchase Contracts from time to time and the Trustee (the “Purchase Contract Agreement”);
WHEREAS, Section 901 of the Base Indenture provides that a supplemental indenture may be entered into without the consent of the holders of any Securities by the Company and the Trustee for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture, and the Notes valid agreements of the Company, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee, for the equal and ratable benefit of the Holders of the Notes, that the Base Indenture is supplemented and amended, to the extent expressed herein, as follows:
ARTICLE 1
SCOPE OF SUPPLEMENTAL INDENTURE; GENERAL
Section 1.01. Scope of Supplemental Indenture; General. This Supplemental Indenture supplements, and to the extent inconsistent therewith, replaces the provisions of the Base Indenture, to which provisions reference is hereby made.
The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes (which shall be initially in the aggregate principal amount of $87,605,600 (as increased by an amount equal to the Initial Principal Amount multiplied by the number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement)) and shall not apply to any other Securities that may be issued under the Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. Pursuant to this Supplemental Indenture, there is hereby created and designated a series of Securities under the Indenture entitled “1.50% Senior Amortizing Notes due 2018.” The Notes may be issued in accordance with the provisions of Article III of the Base Indenture, as modified pursuant to the terms hereof.
For all purposes under the Base Indenture, the Notes shall constitute a single series of Securities, and with regard to any matter requiring the consent under the Base Indenture of Holders of multiple series of Securities voting together as a single class, the consent of Holders of the Notes voting as a separate class shall also be required and the same threshold shall apply.
ARTICLE 2
CERTAIN DEFINITIONS
Section 2.01. Certain Definitions. Section 101 of the Base Indenture is hereby amended by adding the following definitions in their proper alphabetical order which, in the event of a conflict with the definition of terms in the Base Indenture, shall govern. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Base Indenture.
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“APC Stock” means the common stock, par value $0.10 per share, of the Company as it existed on the Issue Date.
“Base Indenture” has the meaning ascribed to it in the preamble hereof.
“Business Day” means any day other than a Saturday, Sunday or any day on which banking institutions in New York, New York are authorized or obligated by applicable law or executive order to close or be closed.
“Certificated Note” means a Note in definitive registered form without interest coupons that is not a Global Note.
“close of business” means 5:00 p.m. (New York City time).
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning ascribed to it in the preamble hereof and shall also refer to any successor obligor under the Indenture.
“Component Note” means a Note in global form and attached to a Global Unit that (a) shall evidence the number of Notes specified therein that are components of the Units evidenced by such Global Unit, (b) shall be registered on the Security Register in the name of The Bank of New York Mellon Trust Company, N.A., as attorney-in-fact of holder(s) of the Units of which such Notes form a part, and (c) shall be held by the Purchase Contract Agent as attorney-in-fact for such holder(s), together with the Global Unit, as custodian of such Global Unit for the Depositary.
“Default” means any event, act or condition that is, or after notice or the lapse of time or both would be, an Event of Default.
“EDGAR” means the Electronic Data-Gathering, Analysis, and Retrieval system of the Commission.
“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect on the Issue Date.
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“Global Note” has the meaning ascribed to such term in Section 6.01(b) hereof. Each Global Note shall constitute a Global Security.
“Global Note Holder” has the meaning ascribed to such term in Section 6.04 hereof.
“Global Unit” has the meaning ascribed to such term in the Purchase Contract Agreement.
“Indenture” has the meaning ascribed to it in the preamble hereof.
“Initial Principal Amount” means $10.9507 per Note.
“Installment Payment” has the meaning ascribed to it in Section 6.02(a).
“Installment Payment Date” means each March 7, June 7, September 7 and December 7, commencing on September 7, 2015 and ending on the Maturity Date.
“Installment Payment Period” means the period from, and including, the Issue Date to, but excluding, the first Installment Payment Date and each subsequent full quarterly period from, and including, an Installment Payment Date to, but excluding, the immediately succeeding Installment Payment Date.
“Interest Rate” has the meaning ascribed to it in Section 6.02(c).
“Issue Date” means June 10, 2015.
“Maturity Date” means June 7, 2018.
“Note” and “Notes” have the respective meanings ascribed to such terms in the recitals hereof and includes, for the avoidance of doubt, both Separate Notes and Notes that constitute part of a Unit.
“Purchase Contract” means a prepaid equity purchase contract obligating the Company to deliver WGP Common Units, subject to the Company’s right to settle such purchase contract in shares of APC Stock, on the terms and subject to the conditions set forth in the Purchase Contract Agreement.
“Purchase Contract Agent” means The Bank of New York Mellon Trust Company, N.A., until a successor Purchase Contract Agent shall have become such pursuant to the applicable provisions of the Purchase Contract Agreement, and thereafter “Purchase Contract Agent” shall mean such Person.
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“Purchase Contract Agreement” has the meaning ascribed to it in the recitals hereof.
“Regular Record Date” means, with respect to any March 7, June 7, September 7 or December 7 Installment Payment Date, the immediately preceding February 23, May 23, August 23 or November 23, respectively.
“Securities” has the meaning ascribed to it in the recitals hereof.
“Separate Note” means a Note that has been separated from a Unit in accordance with the terms of the Purchase Contract Agreement.
“Separate Purchase Contract” means a Purchase Contract that has been separated from a Unit in accordance with the terms of the Purchase Contract Agreement.
“Supplemental Indenture” has the meaning ascribed to it in the preamble hereof.
“Trustee” means the party named in the preamble hereof until a successor replaces such party in accordance with the applicable provisions of the Indenture and thereafter means the successor serving hereunder.
“Underwriters” has the meaning ascribed to it in the Underwriting Agreement.
“Underwriting Agreement” means the Underwriting Agreement, dated as of June 4, 2015, between the Company and the Underwriters named therein, relating to the Units.
“Unit” means the collective rights of a Holder of a 7.50% Tangible Equity Unit, with a stated amount of $50, issued by the Company pursuant to the Purchase Contract Agreement, each consisting of a single Purchase Contract and a single Note prior to separation or subsequent to recreation thereof pursuant to the Purchase Contract Agreement.
“WGP Common Units” mean the common units representing limited partner interests in Western Gas Equity Partners, LP, as they existed on the Issue Date.
Section 2.02. Rules of Construction. Unless the context otherwise requires or except as otherwise expressly provided, an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP.
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ARTICLE 3
COVENANTS
Section 3.01. Reports. For purposes of Section 704 of the Base Indenture, with respect to the Notes, documents filed by the Company with the Commission via EDGAR shall be deemed to be filed with the Trustee, and transmitted to the Holders of the Notes, as of the time such documents are filed via EDGAR, provided that the Trustee shall have no obligation whatsoever to determine if such filing has occurred.
Section 3.02. Applicability of Covenants Contained in the Base Indenture. Each of the agreements and covenants of the Company contained in the Base Indenture (including, without limitation, Articles VIII and X thereof), except as specified herein, shall apply to the Notes.
ARTICLE 4
DEFAULTS AND REMEDIES
Section 4.01. Amendments to the Base Indenture.
(a) For purposes of Section 502 of the Base Indenture, the amount due and payable upon acceleration of the Maturity of the Notes shall be the principal amount of the Notes, plus accrued but unpaid interest thereon.
(b) Solely for purposes of the Notes, clause (1)(A) of Section 502 of the Base Indenture shall be amended and restated in its entirety to read “all interest on any Notes which have become due otherwise than by such declaration of acceleration and any interest thereon at the Interest Rate.”
(c) Solely for purposes of the Notes, clause (2) of Section 502 of the Base Indenture shall be amended and restated in its entirety to read “all Events of Default with respect to the Notes, other than the non-payment of the principal of, and interest on, the Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.”
ARTICLE 5
DISCHARGE
Section 5.01. Amendment to Base Indenture. Solely for purposes of the Notes, clause (1)(B)(ii) of Section 401 of the Base Indenture shall be amended and restated in its entirety to read “have a final Installment Payment Date within one year, or”.
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ARTICLE 6
THE NOTES
Section 6.01. Form of Notes. (a) The Notes will initially be issued as Component Notes in the form of Attachment 4 to the form of Global Unit attached as Exhibit A to the Purchase Contract Agreement, and will be attached to the related Global Unit and registered in the name of The Bank of New York Mellon Trust Company, N.A., as attorney-in-fact of the holder(s) of such Global Unit.
(b) Holders of Units have the right to separate such Units into their constituent parts, consisting of Separate Purchase Contracts and Separate Notes, during the times, and under the circumstances, described in Section 2.03 of the Purchase Contract Agreement. Upon separation of any Unit into its constituent parts, (i) if such Unit is a Global Unit, the Separate Notes will initially be evidenced by Global Securities in the form of Exhibit A hereto (the “Global Note”) deposited with the Trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee, or (ii) if such Unit is in definitive, registered form, the Separate Notes will be evidenced by a Certificated Note, in each case, as provided in Section 2.03 of the Purchase Contract Agreement. Following separation of any Unit into its constituent Separate Note and Separate Purchase Contract, the Separate Notes are transferable independently from the Separate Purchase Contracts. In addition, Separate Notes can be recombined with Separate Purchase Contracts to recreate Units, as provided for in Section 2.04 of the Purchase Contract Agreement. If Certificated Notes are to be issued, the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Certificated Notes, shall authenticate and deliver Certificated Notes in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Note or Notes representing such Notes.
(c) The terms of such Notes are herein incorporated by reference and are part of this Supplemental Indenture.
(d) The Notes shall be issuable in denominations initially equal to the Initial Principal Amount and integral multiples in excess thereof.
(e) Notwithstanding the provisions of Section 303 of the Base Indenture, the corporate seal of the Company need not be reproduced on any Note.
Section 6.02. Installment Payments. (a) The Company shall pay installments on the Notes (each such payment, an “Installment Payment”) in cash at the place, at the respective times and in the manner provided herein and in the Notes.
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(b) On the first Installment Payment Date occurring on September 7, 2015, the Company shall pay, in cash, an Installment Payment with respect to each Note in an amount equal to $0.9063 per Note, and on each Installment Payment Date thereafter, the Company shall pay, in cash, equal quarterly Installment Payments with respect to each Note in an amount equal to $0.9375 per Note; provided that, in respect of any Certificated Notes, the final Installment Payment shall be made only against surrender of such Note to the Paying Agent. None of the Company, the Purchase Contract Agent and any Paying Agent shall have any obligation to provide or deliver notice of such final Installment Payment. Installment Payments shall be paid to the Person in whose name a Note is registered as of the close of business on the applicable Regular Record Date.
(c) Each Installment Payment shall constitute a payment of interest (at an annual rate of 1.50% (the “Interest Rate”)) and a partial repayment of principal on the Notes, allocated with respect to each Note as set forth in the schedule below:
| Installment Payment Date |
Amount of Principal | Amount of Interest | ||||||
| September 7, 2015 |
$ | 0.8666 | $ | 0.0397 | ||||
| December 7, 2015 |
$ | 0.8997 | $ | 0.0378 | ||||
| March 7, 2016 |
$ | 0.9031 | $ | 0.0344 | ||||
| June 7, 2016 |
$ | 0.9064 | $ | 0.0311 | ||||
| September 7, 2016 |
$ | 0.9098 | $ | 0.0277 | ||||
| December 7, 2016 |
$ | 0.9133 | $ | 0.0242 | ||||
| March 7, 2017 |
$ | 0.9167 | $ | 0.0208 | ||||
| June 7, 2017 |
$ | 0.9201 | $ | 0.0174 | ||||
| September 7, 2017 |
$ | 0.9236 | $ | 0.0139 | ||||
| December 7, 2017 |
$ | 0.9270 | $ | 0.0105 | ||||
| March 7, 2018 |
$ | 0.9305 | $ | 0.0070 | ||||
| June 7, 2018 |
$ | 0.9340 | $ | 0.0035 | ||||
For purposes of the Base Indenture reference to “interest” on the Notes, “payment(s) of interest” on the Notes, and related and/or derivative terms or phrases shall be deemed, solely for purposes of the Notes and any Installment Payment thereon, to be references to the portion of the relevant Installment Payment that constitutes interest determined pursuant to the table above. For purposes of the Base Indenture reference to “principal” of the Notes, “payment(s) of principal” of the Notes, and related and/or derivative terms or phrases shall be deemed, solely for purposes of the Notes and any Installment Payment thereon, to be references to the portion of the relevant Installment Payment that constitutes principal determined pursuant to the table above. Defaulted Interest, and other overdue amounts, on the Notes shall accrue additional interest at the Interest Rate.
8
(d) Each Installment Payment for any Installment Payment Period shall be computed on the basis of a 360-day year of twelve 30-day months. If an Installment Payment is payable for any period shorter or longer than a full Installment Payment Period, such Installment Payment shall be computed on the basis of the number of days elapsed per 30-day month. Furthermore, if any date on which an Installment Payment is payable is not a Business Day, then payment of the Installment Payment on such date shall be made on the next succeeding day that is a Business Day, and without any interest or other payment in respect of any such delay.
Section 6.03. Maturity Date. The date on which the final Installment Payment on the Notes shall be due, unless the Notes are accelerated pursuant to the terms hereof, shall be the Maturity Date.
Section 6.04. Depositary. The Depositary for the Global Note shall initially be DTC. The Global Note (which shall initially have a balance of zero Notes) shall be deposited on or about the Issue Date with, or on behalf of, DTC and registered in the name of Cede & Co., as nominee of DTC (such nominee being referred to herein as the “Global Note Holder”).
Section 6.05. Certificated Notes. This Section 6.05 supersedes clause (2) of Section 305 of the Base Indenture and any reference in the Base Indenture to such clause or any provision thereof shall be deemed, for the purposes of the Notes, to refer to this Section 6.05 or the corresponding provision herein, as the case may be. If:
(i) the Depositary is unwilling or unable to continue as depositary for such Global Note and the Company is unable to find a qualified replacement for such Depositary within 90 days;
(ii) at any time the Depositary ceases to be a clearing agency registered under the Exchange Act; or
(iii) an Event of Default, or any failure on the part of the Company to observe or perform any covenant or agreement in the Indenture, the Purchase Contracts or the Purchase Contract Agreement has occurred and is continuing and the beneficial owner of any Notes represented by a Global Note requests through DTC that its Notes be issued in physical, certificated form,
then, in each case, the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Certificated Notes, shall authenticate and deliver Certificated Notes in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Note or Notes representing such Notes (or in an aggregate principal amount equal to the principal amount of the Notes in respect of which a beneficial owner has requested the issuance of Notes in physical, certificated form pursuant to clause (iii) above) in exchange for such Global Note or Notes (or relevant portion thereof).
9
ARTICLE 7
REDEMPTION / SINKING FUNDS
Section 7.01. Inapplicable Provisions of Base Indenture. The Notes shall not be redeemable and no sinking fund shall be provided for the Notes. Articles XI and XII of the Base Indenture shall not apply to the Notes.
ARTICLE 8
TAX TREATMENT
Section 8.01. Tax Treatment. The Company and each Holder agree, for United States federal income tax purposes, to treat the Notes as indebtedness of the Company.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Base Indenture. Section 9.02 and Section 9.03 of this Supplemental Indenture supersede in their entirety Sections 901 and Section 902 of the Base Indenture, respectively, and any reference in the Base Indenture to Section 901 or 902 thereof or any provision therein shall be deemed, for the purposes of the Notes, to refer to Section 9.02 and Section 9.03 of this Supplemental Indenture, as the case may be, or the corresponding provision thereof.
Section 9.02. Amendments Without Consent of Holders. The Company and the Trustee may amend or supplement the Indenture or the Notes without notice to or the consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency in the Indenture or the Notes; provided that such amendments or supplements shall not adversely affect the interests of the Holders;
(b) provide for the assumption by a successor Person of the Company’s obligations as set forth in Section 801 of the Base Indenture;
(c) comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act;
10
(d) evidence and provide for the acceptance of appointment with respect to the Notes by a successor Trustee in accordance with the Indenture, and add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts under the Indenture by more than one Trustee;
(e) provide for uncertificated or unregistered securities and to make all appropriate changes for such purpose;
(f) secure the Notes;
(g) add guarantees with respect to the Notes;
(h) add to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred upon the Company;
(i) make any change that does not adversely affect the rights of any Holder; and
(j) conform the provisions of the Indenture and/or the Notes to the “Description of the amortizing notes” section in the base prospectus and related preliminary prospectus supplement with respect to the Units, the Purchase Contracts and the Notes dated June 3, 2015, as supplemented and/or amended by the pricing term sheet dated June 4, 2015, relating to the offering and sale of the Units, the Purchase Contracts and the Notes.
Section 9.03. Amendments with Consent of Holders. Without prior notice to any Holders, the Company and the Trustee may amend the Indenture and the Notes with the consent of the Holders of a majority in principal amount of the Outstanding Notes, and the Holders of a majority in principal amount of the Outstanding Notes may consent to a waiver of future compliance by the Company with any provision of the Indenture or the Notes. Any such consents may be obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes. Notwithstanding the foregoing, without the consent of each Holder affected thereby, an amendment or waiver may not:
(a) change any Installment Payment Date or the amount owed on any Installment Payment Date,
(b) reduce the principal amount of the Notes or the Interest Rate;
(c) reduce the percentage in principal amount of Outstanding Notes the consent of whose Holders is required to amend the Indenture with respect to the Notes or for any waiver of compliance with provisions of the Indenture or Events of Default and their consequences provided for herein, or make any change to this sentence;
11
(d) change the ranking of the Notes; or
(e) make the Notes payable in a currency other than that stated in the Notes.
It shall not be necessary for any consent of Holders under this Section 9.03 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.04. Notice of Supplemental Indentures. After any amendment or waiver under Section 9.03 becomes effective, the Company shall give to the Holders affected thereby a notice briefly describing such amendment or waiver. The Company shall mail supplemental indentures to Holders upon request. Any failure of the Company to give such notice or mail such supplemental indenture, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Governing Law. THIS SUPPLEMENTAL INDENTURE, THE NOTE, THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENTAL INDENTURE AND THE NOTES, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 10.02. No Adverse Interpretation of Other Agreements. This Supplemental Indenture may not be used to interpret any other indenture, loan or other agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or other agreement may not be used to interpret this Supplemental Indenture.
Section 10.03. Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 10.04. Counterparts. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
12
Section 10.05. Separability Clause. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.06. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.07. Conflict of Any Provision of Indenture with the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Supplemental Indenture, the latter provision shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 10.08. Ratification of Indenture. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
Section 10.09. Waiver of Jury Trial. The Company and the Trustee hereby waive their respective rights to trial by jury in any action or proceeding arising out of or related to the Indenture, the Notes or the transactions contemplated hereby or thereby, to the extent permitted by law.
Section 10.10. Concerning The Trustee. Each Holder of a Component Note, by its acceptance thereof, consents and agrees to the terms of the Purchase Contract Agreement as the same may be in effect or as may be amended from time to time in accordance with its terms and authorizes and directs the Trustee to enter into and perform its obligations and exercise its rights in accordance therewith, to bind the Holders on the terms set forth therein and, unless violative of the provisions hereof and thereof, to execute any and all documents, amendments, waivers, consents, releases or other instruments required (or authorized) to be executed by it pursuant to the terms thereof. The Trustee makes no representations and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or the Notes or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company, and the Trustee assumes no responsibility for the same. All of the provisions contained in the Indenture in respect of the rights, powers, privileges, and immunities of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and with like force and effect as though fully set forth in full herein.
13
Section 10.11. FATCA. In order for the Trustee to comply with FATCA, the Company agrees (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about transactions (including any modification to the terms of such transactions) relating to the Notes that is reasonably requested by the Trustee so that the Trustee can determine whether it has tax related obligations under FATCA, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with FATCA. The terms of this Section 10.11 shall survive the satisfaction and discharge of the Indenture.
14
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| ANADARKO PETROLEUM | ||
| By: | /s/ Albert L. Richey | |
| Name: | Albert L. Richey | |
| Title: | Senior Vice President, Finance And Treasurer | |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ Lawrence M. Kusch | |
| Name: | Lawrence M. Kusch | |
| Title: | Vice President | |
15
EXHIBIT A
[FORM OF FACE OF NOTE]
[THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (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 SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]*
[THE PRINCIPAL BALANCE OF NOTES IS SUBJECT TO REDUCTION DUE TO PAYMENTS REPRESENTING THE PRINCIPAL PORTION OF EACH INSTALLMENT PAYMENT.]**
| * | Include only if a Global Note. |
| ** | Include only if a Certificated Note. |
A-1
ANADARKO PETROLEUM CORPORATION
1.50% SENIOR AMORTIZING NOTES DUE 2018
CUSIP No. 032511 503
ISIN No.: US0325115030
| No. |
[Initial]* Number of Notes: |
ANADARKO PETROLEUM CORPORATION, a Delaware corporation (the “Company”, which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to [CEDE & CO., as nominee of The Depository Trust Company]* [ ]**, or registered assigns (the “Holder”), the initial principal amount of $10.9507 for each of the number of Notes set forth above[, which number of Notes may from time to time be reduced or increased as set forth in Schedule A hereto, as appropriate, in accordance with the terms of the Indenture, but which number of Notes, taken together with the number of all other Outstanding Notes, shall not exceed 8,000,000 Notes at any time (as increased by a number of Notes equal to the number of any additional Units purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement)]*, in equal quarterly installments (except for the first such payment) (each such payment, an “Installment Payment,” constituting a payment of interest at the rate per year of 1.50% and a partial repayment of principal) payable on each March 7, June 7, September 7 and December 7, commencing on September 7, 2015 (each such date, an “Installment Payment Date” and the period from, and including, June 10, 2015 to, but excluding, the first Installment Payment Date and each subsequent full quarterly period from, and including, an Installment Payment Date to, but excluding, the immediately succeeding Installment Payment Date, an “Installment Payment Period”), all as set forth on the reverse hereof, with the final Installment Payment due and payable on June 7, 2018.
The Installment Payment on any Installment Payment Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months. If an Installment Payment for any period shorter or longer than a full Installment Payment Period, such Installment Payment shall be computed on the basis of the number of days elapsed per 30-day month. In the event that any Installment Payment Date is not a Business Day, then payment of the Installment Payment on such date will be made on the next succeeding day that is a Business Day, and without any interest or other payment in respect of any such delay. Installment Payments shall be paid to the Person in whose name the Note is registered at the close of business on February 23, May 23, August 23 and November 23, as applicable (each, a “Regular Record Date”). Installment Payments on this Note will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of
A-2
America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Note in the case of the Installment Payment due on the Maturity Date; provided, however, that if this Note is not a Global Note, (i) Installment Payments, other than the final Installment Payment, will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; and the final Installment Payment will be made by check against surrender of this Note; (ii) all payments by check will be made in next-day funds (i.e., funds that become available on the day after the check is cashed); and (iii) notwithstanding clauses (i) and (ii) above, with respect to any payment of any amount due on this Note, if this Note has an initial principal amount of at least $1,000,000 and the Holder hereof at the time of surrender hereof or, in the case of any Installment Payment other than the final Installment Payment, the Holder thereof on the related Regular Record Date delivers a written request to the Paying Agent to make such Installment Payment by wire transfer at least five Business Days before the date such payment becomes due, together with appropriate wire transfer instructions specifying an account at a bank in New York, New York, the Company shall make such payment by wire transfer of immediately available funds to such account at such bank in New York City, any such wire instructions, once properly given by a Holder as to this Note, remaining in effect as to such Holder and this Note unless and until new instructions are given in the manner described above; provided further, that notwithstanding anything in the foregoing to the contrary, if this Note is a Global Note, payment shall be made pursuant to the Applicable Procedures of the Depositary as permitted in the Indenture.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to or be valid or obligatory for any purpose until the Certificate of Authentication shall have been manually signed by or on behalf of the Trustee.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will for all purposes have the same effect as if set forth at this place.
[SIGNATURES ON THE FOLLOWING PAGE]
| * | Include only if a Global Note. |
| ** | Include only if not a Global Note. |
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| ANADARKO PETROLEUM CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee,
certifies that this is one of the Notes of the
series designated herein referred to in the
within mentioned Indenture.
Dated:
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
[REVERSE OF NOTE]
ANADARKO PETROLEUM CORPORATION
1.50% Senior Amortizing Notes due 2018
This Note is one of a duly authorized series of Securities of the Company designated as its 1.50% Senior Amortizing Notes due 2018 (herein sometimes referred to as the “Notes”), issued under the Indenture for Debt Securities, dated as of September 19, 2006, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee,” which term includes any successor trustee under the Indenture) (including any provisions of the Trust Indenture Act that are deemed incorporated therein) (the “Base Indenture”), as supplemented by the Third Supplemental Indenture, dated as of June 10, 2015 (the “Third Supplemental Indenture”), between the Company and the Trustee (the Base Indenture and, as supplemented by the Third Supplemental Indenture, the “Indenture”), to which Indenture reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders. The terms of other series of Securities issued under the Base Indenture may vary with respect to interest rates, issue dates, maturity, redemption, repayment, currency of payment and otherwise as provided in the Base Indenture. The Indenture further provides that Securities of a single series may be issued at various times, with different maturity dates and may bear interest at different rates. This series of Securities is limited in aggregate principal amount as specified in the Third Supplemental Indenture.
Each Installment Payment shall constitute a payment of interest (at an annual rate of 1.50%) and a partial repayment of principal on the Notes, allocated with respect to each Note as set forth in the schedule below:
| Installment Payment Date |
Amount of Principal | Amount of Interest | ||||||
| September 7, 2015 |
$ | 0.8666 | $ | 0.0397 | ||||
| December 7, 2015 |
$ | 0.8997 | $ | 0.0378 | ||||
| March 7, 2016 |
$ | 0.9031 | $ | 0.0344 | ||||
| June 7, 2016 |
$ | 0.9064 | $ | 0.0311 | ||||
| September 7, 2016 |
$ | 0.9098 | $ | 0.0277 | ||||
| December 7, 2016 |
$ | 0.9133 | $ | 0.0242 | ||||
| March 7, 2017 |
$ | 0.9167 | $ | 0.0208 | ||||
| June 7, 2017 |
$ | 0.9201 | $ | 0.0174 | ||||
| September 7, 2017 |
$ | 0.9236 | $ | 0.0139 | ||||
| December 7, 2017 |
$ | 0.9270 | $ | 0.0105 | ||||
| March 7, 2018 |
$ | 0.9305 | $ | 0.0070 | ||||
| June 7, 2018 |
$ | 0.9340 | $ | 0.0035 | ||||
R-1
The Notes shall not be subject to redemption at the option of the Company.
This Note is not entitled to the benefit of any sinking fund. The Base Indenture contains provisions in Articles IV and XIII thereof for the satisfaction and discharge of the Indenture and for defeasance and covenant defeasance at any time of the indebtedness on this Note upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be continuing, then (unless no declaration of acceleration or notice is required for such Event of Default) either the Trustee or the Holders of not less than 25% in principal amount of the Notes then Outstanding may declare the principal amount of the Notes, plus accrued but unpaid interest thereon, to be due and payable immediately, in the manner, subject to the conditions and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee, with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding, to execute supplemental indentures for certain purposes as described therein.
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 Installment Payments on this Note at the time, place and rate, and in the coin or currency, herein and in the Indenture prescribed.
The Notes are originally being issued as part of the 7.50% Tangible Equity Units (the “Units”) issued by the Company pursuant to that certain Purchase Contract Agreement, dated as of June 10, 2015, among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as attorney-in-fact for the holders of Purchase Contracts from time to time and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture (the “Purchase Contract Agreement”). Holders of the Units have the right to separate such Units into their constituent parts, consisting of Separate Purchase Contracts (as defined in the Purchase Contract Agreement) and Separate Notes, during the times, and under the circumstances, described in the Purchase Contract Agreement. Following separation of any Unit into its constituent Separate Note and Separate Purchase Contract, the Separate Notes are transferable independently from the Separate Purchase Contracts. In addition, Separate Notes can be recombined with Separate Purchase Contracts to recreate Units, as provided for in the Purchase Contract Agreement. Reference is hereby made to the Purchase Contract Agreement for a more complete description of the terms thereof applicable to the Units and Notes.
R-2
The Notes are initially issued in registered, global form without coupons in denominations initially equal to $10.9507 and integral multiples in excess thereof.
This Note and the Indenture, and the rights and obligations of the parties hereto and thereto, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York.
Capitalized terms used but not defined in this Note shall have the meanings ascribed to such terms in the Indenture.
The Company and each Holder agree, for United States federal income tax purposes, to treat the Notes as indebtedness of the Company.
In the event of any inconsistency between the provisions of this Note and the provisions of the Indenture, the Indenture shall prevail.
R-3
ASSIGNMENT
| FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to: | ||
|
| ||
| (Insert assignee’s social security or tax identification number) | ||
|
| ||
| (Insert address and zip code of assignee) | ||
| and irrevocably appoints |
| |
| agent to transfer this Note on the books of the Company. The agent may substitute another to act for him or her. | ||
Date:
| Signature: |
|
| Signature Guarantee: |
| |
(Sign exactly as your name appears on the other side of this Note)
R-4
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
| By: |
| |
| Name: | ||
| Title: | ||
|
| ||
| as Trustee | ||
| By: |
| |
| Name: | ||
| Title: |
Attest
| By: |
| |
| Name: | ||
| Title: |
R-5
SCHEDULE A
[SCHEDULE OF INCREASES OR DECREASES IN NUMBER OF NOTES
EVIDENCED BY THIS GLOBAL NOTE]*
The initial number of Notes evidenced by this Global Note is . The following increases or decreases in this Global Note have been made:
| Date |
Amount of decrease in number of Notes evidenced hereby |
Amount of increase in number of Notes evidenced hereby |
Number of Notes evidenced hereby following such decrease (or increase) |
Signature of authorized officer of Trustee | ||||
| * | Include only if a Global Note. |
A-1
Exhibit 5.1
Tel 713.758.2222 Fax 713.758.2346
June 10, 2015
Anadarko Petroleum Corporation
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Ladies and Gentlemen:
In connection with the entrance into the Terms Agreement, dated as of June 4, 2015 (including the Underwriting Agreement (Standard Provisions) incorporated therein, the “Terms Agreement”), among Anadarko Petroleum Corporation, a Delaware corporation (the “Company”), Western Gas Equity Partners, LP, a Delaware limited partnership (“WGP”), Western Gas Equity Holdings, LLC, a Delaware limited liability company, and J.P. Morgan Securities LLC, as representative of the other underwriters named therein (the “Underwriters”), pursuant to which the Underwriters have agreed to purchase from the Company 8,000,000 7.50% tangible equity units (the “Firm Units”) and up to an additional 1,200,000 7.50% tangible equity units (the “Additional Units” and, together with the Firm Units, the “Units”). The Units are being issued pursuant to (a) the Registration Statement of the Company on Form S-3 (Registration No. 333-192219) (the “Registration Statement”), filed originally on November 8, 2013 by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), and as amended on June 3, 2015, and (b) the related prospectus dated June 3, 2015, as supplemented by the prospectus supplement relating to the sale of the Units dated June 4, 2015 (as so supplemented, the “Prospectus”), as filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, certain legal matters with respect to the Units are being passed upon for you by us. At your request, this opinion is being furnished to you for filing as Exhibit 5.1 to the Current Report of the Company on Form 8-K to be filed with the Commission on the date hereof (the “Form 8-K”).
Each Unit is comprised of (i) a prepaid equity purchase contract issued by the Company (each, a “Purchase Contract”) pursuant to which the Company will deliver to the holder, not later than June 7, 2018 (subject to postponement in certain limited circumstances), unless earlier settled, a number of common units (the “WGP common units”) representing limited partner interests in WGP, based on the applicable market value of WGP common units at the settlement rate described below, subject to the Company’s right to elect to issue and deliver shares of the Company’s common stock (“Underlying APC Shares”) in lieu of such WGP common units and (ii) a 1.50% Senior Amortizing Note due June 7, 2018 issued by the Company (each, an “Amortizing Note”). The Company issued the Units under a purchase contract agreement (the “Purchase Contract Agreement”), dated as of June 10, 2015, between the Company and The Bank of New York Mellon Trust Company, N.A., as purchase contract agent (the “Purchase Contract Agent”), attorney-in-fact for holders of Purchase Contracts and as trustee under the Indenture (as defined below). The Company issued the Amortizing Notes under an indenture dated as of September 19, 2006 (the “Base Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity, the “Trustee”), as supplemented by that certain Third Supplemental Indenture (herein so called), dated as of June 10, 2015 (as supplemented, the “Indenture”).
In our capacity as your counsel in the connection referred to above, we have examined originals, or copies certified or otherwise identified, of (i) the Certificate of Incorporation and By-laws of the Company, each as amended to date; (ii) the Terms Agreement; (iii) the Registration Statement and the Prospectus; (iv) the Base Indenture; (v) the Third Supplemental Indenture; (vi) the Purchase Contract Agreement and (vii) the corporate
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June 10, 2015 Page 2 |
records of the Company, including minute books of the Company, as furnished to us by the Company, certificates of public officials and of representatives of the Company, statutes and other instruments and documents as a basis for the opinions hereinafter expressed. In giving such opinions, we have relied upon certificates of officers of the Company and of public officials with respect to the accuracy of the material factual matters contained in such certificates. In giving the opinions below, we have assumed that the signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof and that all information submitted to us was accurate and complete. We also have assumed that the Units will be issued and sold in the manner set forth in the Prospectus and the Terms Agreement.
On the basis of the foregoing, and subject to the assumptions, limitations and qualifications hereinafter set forth, we are of the opinion that:
| a. | the Units have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Purchase Contract Agreement and delivered to and paid for by the Underwriters pursuant to the Terms Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Purchase Contract Agreement pursuant to which such Units are to be issued; provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law or (y) the validity, legally binding effect or enforceability of any provision in the Purchase Contract Agreement that requires or relates to adjustments to the settlement rate at a rate or in an amount that a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture; |
| b. | the Amortizing Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Terms Agreement as components of the Units purchased by the Underwriters, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and the Amortizing Notes will be entitled to the benefits of the Indenture pursuant to which such Amortizing Notes are to be issued; provided that we express no opinion as to the (x) enforceability of any waiver of rights under any usury or stay law, (y) effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (z) validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Amortizing Notes to the extent determined to constitute unearned interest; |
| c. | the Purchase Contracts have been duly authorized by the Company and, when executed and delivered in accordance with the provisions of the Purchase Contract Agreement and delivered to and paid for by the Underwriters pursuant to the Terms Agreement as components of the Units purchased by the Underwriters, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Purchase Contract Agreement pursuant to |
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June 10, 2015 Page 3 |
| which such Purchase Contracts are to be issued; provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law or (y) the validity, legally binding effect or enforceability of any provision in the Purchase Contracts that requires or relates to adjustments to the settlement rate at a rate or in an amount that a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture; and |
| d. | the Underlying APC Shares potentially issuable upon settlement of the Purchase Contracts have been duly authorized and reserved and, if issued and delivered upon settlement of the Purchase Contracts in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, will be validly issued, fully paid and non-assessable. |
The opinions set forth above are limited in all respects to matters of the contract law of the State of New York, the General Corporation Law of the State of Delaware and applicable federal law. We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Form 8-K. We also consent to the reference to our Firm under the headings “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Vinson & Elkins L.L.P. |
Exhibit 8.1
June 10, 2015
Anadarko Petroleum Corporation
1201 Lake Robbins Drive
The Woodlands, Texas 77380-1046
| Re: | Anadarko Petroleum Corporation, Form S-3 Registration Statement |
Ladies and Gentlemen:
We have acted as counsel to Anadarko Petroleum Corporation (the “Company”), a Delaware corporation, with respect to certain legal matters in connection with the offer and sale of tangible equity units. We have also participated in the preparation of a prospectus supplement related to the tangible equity units (the “Prospectus Supplement”) dated as of June 4, 2015, and the accompanying base prospectus dated June 3, 2015 (the “Prospectus”), forming part of the Registration Statement on Form S-3ASR, as amended, Registration No. 333-192219 (the “Registration Statement”). This opinion is being furnished to you in accordance with the requirements of Item 601(b)(8) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).
In rendering the opinion set forth herein, we have examined and relied on originals or copies of the following:
| a) | The Registration Statement; |
| b) | The Prospectus; |
| c) | The Prospectus Supplement; and |
| d) | Such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein |
Our opinion is conditioned upon the initial and continuing accuracy of the documents, certificates and records referred to above. We have also assumed that the transactions related to the offering of the tangible equity units will be consummated in the manner contemplated by the Registration Statement and the Prospectus.
For purposes of our opinion, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, electronic, or photostatic copies, and the authenticity of the originals of such latter documents. In making our examination of documents executed, or to be executed, by the parties indicated therein, we have assumed that each party has, or will have, the power, corporate or other, to enter into and perform all obligations thereunder, and we have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by each party indicated in the documents, and that such documents constitute, or will constitute, valid and binding obligations of each party.
| Vinson & Elkins LLP Attorneys at Law Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Palo Alto Riyadh San Francisco Tokyo Washington |
1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 Tel +1.713.758.2222 Fax +1.713.758.2346 www.velaw.com |
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Our opinion is based on the Internal Revenue Code of 1986, as amended, Treasury regulations promulgated thereunder, pertinent judicial authorities, interpretive rulings of the Internal Revenue Service and such other authorities as we have considered relevant, all as in effect as of the date of this opinion and all of which are subject to differing interpretations or change at any time, possibly with retroactive effect. A change in the authorities or the accuracy or completeness of any of the information, documents, certificates, records or assumptions on which our opinion is based could affect the conclusions expressed herein. There can be no assurance, moreover, that the opinions expressed herein will be accepted by the Internal Revenue Service or, if challenged, by a court.
Based upon the foregoing and in reliance thereon, and subject to the qualifications, exceptions, assumptions and limitations contained herein and in the discussion set forth in the Prospectus Supplement under the heading “Material United States federal income tax consequences,” in our opinion, that discussion, insofar as it purports to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, sets forth the material U.S. federal income tax consequences of the purchase, ownership and disposition of the tangible equity units, the components thereof, and the shares of Company common stock, if any, acquired under a purchase contract.
Except as set forth above, we express no other opinion to any party as to any tax consequences, whether federal, state, local or foreign, of the ownership and disposition of the tangible equity units or of any transaction related thereto. These opinions are expressed as of the date of effectiveness of the Registration Statement, and we are under no obligation to supplement or revise our opinions to reflect any legal developments or factual matters arising subsequent to that date or the impact of any information, document, certificate, record or assumption relied upon herein that becomes incorrect or untrue.
We hereby consent to the filing of this opinion of counsel as Exhibit 8.1 to the Current Report on Form 8-K dated on or about the date hereof, to the incorporation by reference of this opinion of counsel into the Registration Statement and to the reference to our firm in the Prospectus and the Prospectus Supplement. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
| Very truly yours, |
| /s/ Vinson & Elkins L.L.P. |
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