Exhibit 1.1
DEVON ENERGY CORPORATION
$500,000,000 5.625% Senior Notes due 2014
$700,000,000 6.300% Senior Notes due 2019
UNDERWRITING AGREEMENT
January 6, 2009
UNDERWRITING AGREEMENT
January 6, 2009
Banc of America Securities LLC
One Bryant Park
New York, New York 10036
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
as
Representatives of the several Underwriters
named in Schedule A
Ladies and Gentlemen:
Devon Energy Corporation, a Delaware corporation (the Company), proposes to issue and sell
to the Underwriters named in Schedule A annexed hereto (the Underwriters), for whom you are
acting as representatives (the Representatives), $500,000,000 5.625% Senior Notes due 2014 (the
2014 Notes) and $700,000,000 6.300% Senior Notes due 2019 (the 2019 Notes and together with the
2014 Notes, the Notes).
The Notes are to be issued pursuant to an indenture (the Base Indenture) dated as of
March 1, 2002, as amended and supplemented by Supplemental Indenture No. 3, to be dated as of
January 9, 2009 (the Supplemental Indenture and together with the Base Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company N.A. (as successor
to The Bank of New York), as trustee (the Trustee). Copies of the Indenture, in substantially
final form, have been delivered to each of the Underwriters.
The Company has filed with the Securities and Exchange Commission (the Commission) in
accordance with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the Act), a registration statement on
Form S-3 (File No. 333-156025), including a prospectus (the Base Prospectus) relating to certain
securities to be issued from time to time by the Company. The Company also has filed with, or
proposes to file with, the Commission pursuant to Rule 424 under the Act a prospectus supplement
specifically relating to the Notes (the Prospectus Supplement) and any free writing prospectus
identified on Schedule B that is required to be filed with the Commission pursuant to Rule 433
under the Act. The registration statement, as amended to the date of this Agreement,
including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under
the Act to
be part of the registration statement at the time of its effectiveness, is hereinafter referred to
as the Registration Statement; and as used herein, the term Prospectus means the Base
Prospectus as supplemented by the prospectus supplement specifically relating to the Notes in the
form first used (or made available upon request of purchasers pursuant to Rule 173 under the Act)
in connection with the confirmation of sales of the Notes and the term Preliminary Prospectus
means any preliminary prospectus supplement specifically relating to the Notes together with the
Base Prospectus. If the Company has filed an abbreviated registration statement pursuant to Rule
462(b) under the Act (the Rule 462 Registration Statement), then any reference herein to the term
Registration Statement shall be deemed to include such Rule 462 Registration Statement.
References herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act which were filed on or before the date of
this Agreement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Prospectus, as the case may be. The terms supplement, amendment, and amend as used herein
with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the
Exchange Act) after the date of this Agreement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be, which are deemed to be incorporated
by reference therein. Effective Date shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or becomes effective, as determined for the Company pursuant to Section 11 of the
Act and Item 512 of Regulation S-K, as applicable. This Agreement, the Notes and the Indenture are
hereinafter sometimes referred to collectively as the Operative Documents.
At or prior to 2:15 P.M., New York City time, on the date hereof (the Time of Sale), the
Company has prepared the following information (collectively, the Time of Sale Information): (i)
a Preliminary Prospectus dated January 6, 2009 relating to the Notes and (ii) the information
identified in Schedule B hereto.
The Company and the Underwriters agree as follows:
1.
Sale and Purchase
: Upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Company agrees to sell to the respective
Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase from the
Company, the aggregate principal amount of Notes set forth opposite the name of such Underwriter in
Schedule A attached hereto at a purchase price of 99.174% of the principal amount thereof in the
case of the 2014 Notes and 99.048% of the principal amount thereof in the case of the 2019 Notes,
in each case plus accrued interest, if any, from January 9, 2009 to the time of purchase (as
hereinafter defined). The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Notes as soon after the effective date of this
Agreement as in your judgment is advisable and (ii) initially to offer the Notes upon the terms set
forth in the Time of Sale Information and the Prospectus. You may from time to
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time increase
or decrease the public offering price after the initial public offering to such extent as you may
determine.
2.
Payment and Delivery
: Payment of the purchase price for the Notes shall be made
to the Company by federal funds wire transfer, against delivery of the certificates for the Notes
to you through the facilities of The Depository Trust Company (DTC) for the respective accounts
of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on
January 9, 2009 (unless another time not later than January 14, 2009 shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 9 hereof). The time
at which such payment and delivery are actually made is hereinafter sometimes called the time of
purchase. Certificates for the Notes shall be delivered to you in global form registered in such
names and in such denominations as you shall specify. As used herein business day shall mean a
day on which the New York Stock Exchange is open for trading.
3.
Representations and Warranties of the Company
: The Company represents and
warrants to each of the Underwriters as of the Time of Sale and the time of purchase that:
(a) The Registration Statement is an automatic shelf registration statement as
defined under Rule 405 of the Act that has been filed with the Commission not earlier than
three years prior to the date hereof; and no notice of objection of the Commission to the
use of such registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company. The Company has not received, and
has no notice of, any order of the Commission preventing or suspending the use of the
Registration Statement, threatening or instituting proceedings for that purpose or pursuant
to Section 8A of the Act or related to the offering.
(b) The Company was a well-known seasoned issuer as defined in Rule 405 of the Act
(i) at the time of the filing of the Registration Statement; (ii) at the time of the most
recent amendment thereto for the purpose of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (ii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) of the Act) made any offer relating to the Notes in reliance on the exemption of
Rule 163 of the Act; and the Company was not an ineligible issuer as defined in Rule 405
of the Act at the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Act) of the Notes.
(c) The Prospectus has been or will be prepared and will be filed pursuant to
Rule 424(b) of the Act on or before the second business day following the date of this
Agreement (or such earlier time as may be required under the Act). As of the Effective
Date, the Registration Statement complied in all material respects with the requirements of
the Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (the Trust Indenture Act), and did not contain an untrue
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statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the time of purchase, the
Prospectus and any amendment or supplement thereto did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading;
provided
that the Company makes no representation and warranty with
respect to (i) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or
(ii) any statements in, or omissions from, any such document in reliance upon, and in
conformity with, written information concerning the Underwriters that was furnished in
writing to the Company by the Representatives, on behalf of the several Underwriters,
specifically for use therein.
(d) The Time of Sale Information at the Time of Sale and at the time of purchase did
not and will not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading;
provided
that the Company makes no
representation and warranty with respect to any statements in, or omissions from, any such
document in reliance upon, and in conformity with, written information concerning the
Underwriters that was furnished in writing to the Company by the Representatives, on behalf
of the several Underwriters, specifically for use therein. No statement of material fact
included in the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is required to be
included in the Prospectus has been omitted therefrom.
(e) In connection with the offering of the Notes, the Company (including its agents
and representatives, other than the Underwriters in their capacity as such) has not
prepared, made, used, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any issuer free writing prospectus (as defined in Rule 433
under the Act) (an Issuer Free Writing Prospectus) other than (i) the documents listed on
Schedule B hereto and (ii) any other written communications, in each case approved in
writing in advance by the Representatives. Each such Issuer Free Writing Prospectus
complied in all material respects with the Act, has been or will be (within the time period
specified in Rule 433 under the Act) filed in accordance with the Act (to the extent
required thereby) and, when taken together with the Preliminary Prospectus did not at the
Time of Sale, and will not at the time of purchase, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation and warranty with respect to any
statements in, or omissions from, any such document in reliance upon, and in conformity
with, written information concerning the Underwriters that was furnished in writing to the
Company by
the Representatives, on behalf of the several Underwriters, specifically for use
therein. Each Issuer Free Writing Prospectus does not include any information
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that
conflicts with the information
contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified.
(f) The documents incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus or any amendment or supplement thereto, when they became
or become effective under the Act or were or are filed with the Commission under the Act or
the Exchange Act, as the case may be, complied or will comply as to form in all material
respects with the requirements of the Act and Exchange Act, as applicable, and none of such
documents contained or will contain an untrue statement of a material fact or omitted or
will omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) Copies of the Registration Statement, the Time of Sale Information and the
Prospectus, any amendments or supplements thereto and all documents incorporated by
reference therein that were filed with the Commission on or prior to the date of this
Agreement (including one fully executed copy of the Registration Statement and of each
amendment thereto for the Underwriters) have been delivered to the Underwriters and their
counsel.
(h) All of the issued and outstanding shares of capital stock or other equity
interests of each Significant Subsidiary (as defined in Regulation S-X under the Act) of the
Company have been duly authorized and validly issued and are fully paid and nonassessable,
except as such nonassessability may be affected by certain provisions of any applicable
jurisdictions statutes. All shares of capital stock or other equity interests of the
Significant Subsidiaries that are owned of record directly by the Company or indirectly by a
wholly owned subsidiary of the Company are owned free and clear of any lien, security
interest, pledge, charge, encumbrance, equity or claim (other than any such lien, security
interest, pledge, charge, encumbrance, equity or claim in favor of the Company or a wholly
owned subsidiary of the Company); none of the outstanding shares of capital stock or other
equity interests of each such Significant Subsidiary was issued in violation of any
preemptive or similar rights or the charter or bylaws or other organizational documents of
the Company or such Significant Subsidiary or any agreement to which the Company or such
Significant Subsidiary is a party. Except as set forth in the Time of Sale Information and
the Prospectus, there are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital stock or other
equity interest of the Significant Subsidiaries.
(i) The Company and each Significant Subsidiary has been duly incorporated, organized
or formed as a corporation, partnership or other entity in good standing under the laws of
its respective jurisdiction of incorporation, organization or formation and has all
requisite power and authority to carry on its business as it is currently being conducted
and as described in the Time of Sale Information and the Prospectus and to own, lease,
license and operate its respective properties in accordance with its business as currently
conducted. The Company and each Significant Subsidiary is duly qualified and in good
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standing as a foreign corporation, partnership or other entity authorized to do business in
each jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so qualified would not,
either individually or in the aggregate, result in a Material Adverse Effect. A Material
Adverse Effect means any material adverse effect on the business, condition (financial or
other), properties, results of operations or business prospects of the Company and its
subsidiaries, taken as a whole.
(j) The Company has all requisite power and authority to execute, deliver and perform
all of its obligations under the Operative Documents and to consummate the transactions
contemplated by the Operative Documents to be consummated on its part and, without
limitation, the Company has all requisite power and authority to issue, sell and deliver the
Notes.
(k) This Agreement has been duly and validly authorized, executed and delivered by the
Company and when executed and delivered by the Company and the other parties hereto will be
a legal, valid and binding agreement of the Company, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors rights
generally and general principles of equity.
(l) The Indenture has been duly and validly authorized by the Company and, when duly
executed and delivered by the Company (assuming the due authorization, execution and
delivery thereof by the Trustee), will constitute a legal, valid and binding obligation of
the Company, enforceable against it in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditors rights generally and by
general principles of equity and the discretion of the court before which any proceedings
therefor may be brought. The Indenture, when executed and delivered, will conform in all
material respects to the description thereof in the Time of Sale Information and the
Prospectus.
(m) The Notes have been duly and validly authorized for issuance and sale to the
Underwriters by the Company and, when issued, authenticated and delivered by the Company
against payment by the Underwriters in accordance with the terms of this Agreement and the
Indenture, the Notes will be legal, valid and binding obligations of the Company, entitled
to the benefits of the Indenture and enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement
of creditors rights generally and by general principles of equity and the discretion of the
court before which any proceedings therefor may be brought. The Notes,
when issued, authenticated and delivered, will conform in all material respects to the
description thereof in the Time of Sale Information and the Prospectus.
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(n) All taxes, fees and other governmental charges that are due and payable on or
prior to the time of purchase in connection with the execution, delivery and performance of
the Operative Documents and the execution, delivery and sale of the Notes shall have been
paid by or on behalf of the Company at or prior to the time of purchase, except for those
failures which would not reasonably be expected, either individually or in the aggregate, to
interfere with or adversely affect the issuance of the Notes in any jurisdiction or
adversely affect the consummation of the transactions contemplated by any of the Operative
Documents.
(o) None of the Company or any Significant Subsidiary is (A) in violation of its
charter, bylaws or other constitutive documents, (B) in default (or, with notice or lapse of
time or both, would be in default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any bond, debenture, note, indenture,
mortgage, deed of trust, loan or credit agreement, or other evidence of indebtedness, or any
lease, license, franchise agreement, authorization, permit, certificate or other agreement
or instrument to which any of them is a party or by which any of them is bound or to which
any of their assets or properties is subject (collectively, Agreements and Instruments),
or (C) in violation of any law, statute, rule, regulation, judgment, order or decree of any
domestic or foreign court with jurisdiction over any of them or any of their assets or
properties or other governmental or regulatory authority, agency or other body, that, in the
case of clauses (B) and (C) herein, would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. There exists no condition
that, with notice, the passage of time or otherwise, would constitute a default by the
Company or any Significant Subsidiary under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness, other than penalties,
defaults or conditions that would not have a Material Adverse Effect.
(p) The execution, delivery and performance by the Company of the Operative Documents,
including the consummation of the offer and sale of the Notes, does not or will not violate,
conflict with or constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both, would constitute a
default), or require consent under, or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Significant Subsidiary
or an acceleration of any indebtedness of the Company or any Significant Subsidiary pursuant
to, (i) the charter, bylaws or other constitutive documents of the Company or any
Significant Subsidiary, (ii) any Agreements and Instruments, (iii) any law, statute, rule or
regulation applicable to the Company or any of its subsidiaries or their respective assets
or properties or (iv) any judgment, order or decree of any domestic or foreign court or
governmental agency or authority having jurisdiction over the Company or any Significant
Subsidiary or its respective assets or properties that, in the case of clauses (ii) through
(iv), would reasonably be expected, either individually or in the aggregate, (1) to have a
Material Adverse Effect or (2) to interfere with or adversely affect the issuance of the
Notes in any jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Operative Documents. No consent, approval, authorization
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or
order of, or filing, registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency, domestic or foreign, is required to be
obtained or made by the Company for the execution, delivery and performance by the Company
of the Operative Documents, including the consummation of any of the transactions
contemplated thereby, except (x) such as have been or will be obtained or made on or prior
to the time of purchase in connection with the issuance of the Notes, (y) such as may be
required under state securities or blue sky laws, or (z) those for which the failure to
obtain would not reasonably be expected, either individually or in the aggregate, (1) to
have a Material Adverse Effect or (2) to interfere with or adversely affect the issuance of
the Notes in any jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Operative Documents. No consents or waivers from any other
person or entity are required for the execution, delivery and performance of this Agreement
or any of the other Operative Documents or the consummation of any of the transactions
contemplated thereby, other than such consents and waivers as have been obtained or will be
obtained prior to the time of purchase, except for those consents or waivers, the failure of
which to obtain would not, either individually or in the aggregate, (1) have a Material
Adverse Effect or (2) interfere with or adversely affect the issuance of the Notes in any
jurisdiction or adversely affect the consummation of the transactions contemplated by any of
the Operative Documents.
(q) Except as described or incorporated by reference in the Time of Sale Information
and the Prospectus, there is (A) no action, suit or proceeding before or by any court,
arbitrator or governmental agency, board, authority, body or official, domestic or foreign,
now pending or, to the knowledge of the Company, threatened or contemplated to which the
Company or any of its subsidiaries is a party or to which the business, assets or property
of such person is subject, (B) no statute, rule, regulation or order that has been enacted,
adopted or issued or, to the knowledge of the Company, that has been proposed by any
governmental body or agency, domestic or foreign, (C) no injunction, restraining order or
order of any nature by a federal or state court or foreign court of competent jurisdiction
to which the Company or any of its subsidiaries is subject that (x) in the case of
clause (A) above, if determined adversely to the Company or such subsidiary, would
reasonably be expected, either individually or in the aggregate, (1) to have a Material
Adverse Effect or (2) to interfere with or adversely affect the issuance of the Notes in any
jurisdiction or adversely affect the consummation of the transactions contemplated by any of
the Operative Documents and (y) in the case of clauses (B) and (C) above, would reasonably
be expected, either individually or in the aggregate, (1) to have a Material Adverse Effect
or (2) to interfere with or adversely affect the issuance of the Notes in any jurisdiction
or adversely affect the consummation of the transactions contemplated by any of the
Operative Documents. Every request of any securities authority or agency of any
jurisdiction for additional information with respect to the Notes that has been received by
the Company or
its counsel prior to the date hereof has been, or will prior to the time of purchase
be, complied with in all material respects.
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(r) Except as described or incorporated by reference in the Time of Sale Information
and the Prospectus, the Company and each Significant Subsidiary (A) is in compliance with,
or not subject to costs or liabilities under, all local, state, provincial, federal and
foreign laws, regulations, rules of common law, orders and decrees, as in effect as of the
date hereof, and any present judgments and injunctions issued or promulgated thereunder
relating to pollution or protection of public and employee health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants
applicable to it or its business or operations or ownership or use of its property
(Environmental Laws), other than noncompliance or such costs or liabilities that would not
reasonably be expected to have a Material Adverse Effect, and (B) possesses all permits,
licenses or other approvals required under applicable Environmental Laws, and is in
compliance with all terms and conditions of any such permit, license or other approval,
except where the failure to possess or noncompliance with any such permit, license or other
approval would not reasonably be expected to have a Material Adverse Effect.
(s) There are no defects in title to, or encumbrances upon the leasehold interests in,
the oil and gas producing properties of the Company and its Significant Subsidiaries or the
assets or facilities used by the Company and its Significant Subsidiaries in the production
and marketing of oil and gas which would reasonably be expected, either individually or in
the aggregate, to have a Material Adverse Effect.
(t) The Company and each subsidiary have filed on a timely basis all necessary
federal, state and foreign income, franchise and other tax returns (other than returns being
contested in good faith or as to which the failure to file would not have a Material Adverse
Effect) and have paid all taxes shown thereon as due (other than those being contested in
good faith or which are currently payable without penalty or interest), and the Company has
no knowledge of any tax deficiency which has been or might be asserted against the Company
or any subsidiary which would have a Material Adverse Effect; all material tax liabilities
are adequately accounted for within the financial statements of the Company in accordance
with United States generally accepted accounting principles (GAAP).
(u) None of the Company or any of its subsidiaries is and, after giving effect to the
offering and sale of the Notes and the application of the proceeds thereof as described in
the Time of Sale Information and the Prospectus will be, required to register as an
investment company or a company controlled by an investment company incorporated in
the United States within the meaning of the Investment Company Act of 1940, as amended.
(v) The Company maintains systems of internal control over financial reporting (as
such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient
to provide reasonable assurance that: (A) transactions are executed in accordance with
managements general or specific authorizations; (B) transactions are recorded as necessary
to permit preparation of its financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance
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with
managements general or specific authorization; and (D) the recorded accountability for its
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(w) The Company has established and maintains disclosure controls and procedures (as
such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made known to the Companys
Chief Executive Officer and its Chief Financial Officer by others within those entities, and
such disclosure controls and procedures are effective to perform the functions for which
they were established.
(x) The Company and its subsidiaries maintain insurance of the types and in the
amounts reasonably believed to be adequate for their business, all of which insurance is in
full force and effect.
(y) Since September 30, 2008, except as set forth or incorporated by reference in the
Time of Sale Information and the Prospectus, (a) none of the Company or any of its
subsidiaries has (1) incurred any liabilities or obligations direct or contingent, that
would reasonably be expected to have a Material Adverse Effect, or (2) entered into any
material transaction not in the ordinary course of business, (b) there has been no material
adverse change or any development involving a prospective material adverse change in the
business, properties, management, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, and (c) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock except in a manner consistent with past practices.
(z) None of the Company or any of its subsidiaries (or any agent thereof acting on
their behalf other than the Underwriters, as to whom the Company makes no representation)
has taken, and none of them will take (other than the Underwriters, as to whom the Company
makes no representation), any action that would reasonably be expected to cause this
Agreement or the issuance or sale of the Notes to violate Regulations T, U or X of the Board
of Governors of the Federal Reserve System or analogous foreign laws and regulations, in
each case as in effect, or as the same may hereafter be in effect, at the time of purchase.
(aa) Each firm of accountants that has certified or shall certify the financial
statements included or to be included as part of or incorporated by reference in the Time of
Sale Information and the Prospectus is an independent accountant within the meaning of the
Act. The historical financial statements and the notes thereto included in or incorporated by reference in the Time of Sale Information and the Prospectus present fairly in
all material respects the consolidated financial position and results of operations of the
Company and its subsidiaries at the respective dates and for the respective periods
indicated. Such financial statements have been prepared in accordance with GAAP applied on
a consistent basis throughout the periods presented (except as disclosed in the Time of
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Sale
Information and the Prospectus, including the documents incorporated by reference therein).
The pro forma financial statements included in or incorporated by reference in the Time of
Sale Information and the Prospectus have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified therein, and give
effect to assumptions made on a reasonable basis and present fairly in all material respects
the transactions disclosed in the Time of Sale Information and the Prospectus. The other
financial and statistical information and data included in or incorporated by reference in
the Time of Sale Information and the Prospectus are accurately presented in all material
respects and prepared on a basis consistent with the financial statements and the books and
records of the Company and its subsidiaries.
(bb) Except as described in the Time of Sale Information and the Prospectus, there are
no contracts, agreements or understandings between the Company or any subsidiaries and any
other person other than the Underwriters that would give rise to a valid claim against the
Company, any of its subsidiaries or the Underwriters for a brokerage commission, finders
fee or like payment in connection with the issuance, purchase and sale of the Notes.
(cc) The statistical and market-related data and forward-looking statements (within
the meaning of Section 27A of the Act and Section 21E of the Exchange Act) included in the
Time of Sale Information and the Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate in all material respects and represent its good
faith estimates that are made on the basis of data derived from such sources.
(dd) Each certificate signed by any officer of the Company and delivered to the
Underwriters or counsel for the Underwriters pursuant to, or in connection with, this
Agreement shall be deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered by such certificate.
(ee) The Notes constitute unsecured and unsubordinated obligations of the Company and
rank
pari
passu
with all other unsecured and unsubordinated debt obligations of the Company.
4.
Certain Covenants of the Company
: The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Notes for offering and sale under the securities or blue sky laws of such
states as you may designate and to maintain such qualification in effect as long as required
for the distribution of the Notes, provided that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of process under the laws of
any
such state (except service of process with respect to the offering and sale of the
Notes); and to promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
-11-
(b) to prepare the Prospectus in substantially the form previously furnished to the
Underwriters with such changes as are reasonably approved by the Underwriters and file such
Prospectus with the Commission pursuant to Rule 424(b) under the Act, on or before the
second business day following the date of this Agreement (or such earlier time as may be
required by the Act); to pay the registration fee for the offering of the Notes within the
time period required by Rule 456(b)(l)(i) under the Act (without giving effect to the
proviso therein); to file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Act; and to make available to the Underwriters in New York City, as soon as
practicable and from time to time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made
any amendments or supplements thereto after the date of this Agreement) as the Underwriters
may reasonably request for the purposes contemplated by the Act and a copy of each Issuer
Free Writing Prospectus in electronic form; in case any Underwriter is required to deliver a
prospectus within the nine-month period referred to in Section 10(a)(3) of the Act in
connection with the sale of the Notes, the Company will prepare promptly upon request, but
at the expense of such Underwriter, such amendment or amendments to the Registration
Statement and such prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such advice in writing
when any post-effective amendment to the Registration Statement becomes effective;
(d) for so long as the delivery of a prospectus is required in connection with the
offering or sale of the Notes, to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or of notice of institution
of proceedings for or the entry of a stop order suspending the effectiveness of the
Registration Statement or suspending the use of any Preliminary Prospectus or the Prospectus
or pursuant to Section 8A of the Act, or of 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, and, if the Commission should
enter a stop order suspending the effectiveness of the Registration Statement, or preventing
or suspending the use of any Preliminary Prospectus or Prospectus, to make every reasonable
effort to obtain the lifting or removal of such order as soon as possible; for so long as
the delivery of a prospectus is required in connection with the offering or sale of the
Notes, to advise you promptly of any proposal to amend or supplement the Registration
Statement or Prospectus (including by filing any documents that would be incorporated
therein by reference), to furnish you a draft of such proposed
amendment or supplement in advance of such filing and to file no such amendment or
supplement to which you shall reasonably object in writing unless the Company is required by
law to make such filing;
(e) to file promptly all reports and any definitive proxy or information statement
required to be filed by the Company with the Commission in order to comply with the
-12-
Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Notes, and to promptly notify you
of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule
462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the
Company within the time during which a prospectus relating to the Notes is required to be
delivered under the Act (or required to be delivered but for Rule 172 under the Act) which,
in the judgment of the Company, would require the making of any change in the Prospectus
then being used, or in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading, and, during such time, to prepare and furnish, at the
Companys expense, to the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to furnish to you a copy of
such proposed amendment or supplement before filing any such amendment or supplement with
the Commission;
(h) to make generally available to its security holders (as provided in Rule 158(b)
under the Act) an earnings statement of the Company (which will satisfy the provisions of
Section 11(a) of the Act) covering a period of twelve months beginning with the first fiscal
quarter of the Company occurring after the effective date of the Registration Statement (as
defined in Rule 158(c) under Act) as soon as is reasonably practicable after the termination
of such twelve-month period;
(i) to apply the net proceeds from the sale of the Notes in the manner set forth under
the caption Use of Proceeds in the Time of Sale Information and the Prospectus;
(j) to pay or cause to be paid, whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, all costs, expenses, fees and
taxes (other than any transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 6 hereof and (iii) below) incident to and in
connection with the performance of its obligations under this Agreement, including, without
limitation, (i) the preparation and filing of the Registration Statement, the Prospectus,
any Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii) the preparation,
issuance, execution, authentication and delivery of the Notes, (iii) the qualification of
the Notes for offering and sale under state laws (including the reasonable legal fees and
filing fees and other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys to the Underwriters and to dealers, (iv) any
fees payable to investment rating agencies with respect to the Notes, (v) the approval of
the Notes by DTC for book entry transfer, (vi) the fees and expenses of the
-13-
Trustee and
its counsel in accordance with the Indenture and (vii) the performance of the Companys
other obligations hereunder including, but not limited to, the fees, disbursements and
expenses of the Companys counsel and accountants;
(k) to furnish to you, before filing with the Commission subsequent to the date of
this Agreement and during the period referred to in Section 4(d) hereof, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act; and
(l) if at any time prior to the time of purchase (i) any event shall occur or
condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would 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 existing when the Time of Sale Information is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (d) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as the Representative may
designate, such amendments or supplements to the Time of Sale Information as may be
necessary so that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances existing when the Time of Sale
Information is delivered to a purchaser, be misleading or so that the Time of Sale
Information will comply with law;
provided
,
however
, that the Company shall
not be required to amend or supplement the Time of Sale Information if the Company amends or
supplements the Prospectus to address any matter specified in clauses (i) or (ii) above.
5.
Certain Covenants of the Underwriters
: Each Underwriter hereby represents and
agrees:
(a) it has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any free writing prospectus (as defined in Rule 405 under the Act), which term
includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company, other than (i) a free writing prospectus that, solely as a result of use by such
Underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433 under the Act, (ii) any Issuer Free Writing Prospectus listed on
Schedule B hereto or prepared pursuant to Section 3(e) hereof (including any electronic road show),
or (iii) any free
writing prospectus prepared by such Underwriter and approved by the Company in advance in
writing; and
(b) it is not subject to any pending proceeding under Section 8A of the Act with respect to
the offering (and will promptly notify the Company if any such proceeding against it is initiated
during the period referred to in Section 4(d) hereof).
-14-
6.
Reimbursement of Underwriters Expenses
: If the Notes are not delivered for any
reason other than the termination of this Agreement pursuant to clause (iii), (v) or (vi) of
Section 8 or the last paragraph of Section 9 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company shall, in addition to
paying the amounts described in Section 4(j) hereof, reimburse the Underwriters for all of their
reasonable and documented out-of-pocket expenses, including the fees and disbursements of their
counsel.
7.
Conditions of Underwriters Obligations
: The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, as of the Time of Sale and at the time of purchase as set
forth below, the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase an opinion of (i) Mayer
Brown LLP, counsel for the Company, substantially in the form of
Exhibit A
hereto,
addressed to the Underwriters and dated the time of purchase, with reproduced copies thereof
for each of the other Underwriters.
(b) You shall have received on the date of this Agreement and at the time of purchase
from KPMG LLP customary comfort letters dated, respectively, as of the date of this
Agreement and the time of purchase and addressed to the Underwriters (with reproduced copies
for each of the other Underwriters) in the forms and substances heretofore approved by the
Representatives and counsel to the Underwriters.
(c) You shall have received at the time of purchase the opinion of Davis Polk &
Wardwell, counsel for the Underwriters, dated the time of purchase, in form and substance
reasonably satisfactory to you.
(d) All filings with the Commission required by Rules 424 and 433 under the Act to
have been filed by the time of purchase shall have been made within the applicable time
period prescribed for such filing by Rule 424 or 433, as applicable.
(e) Prior to the time of purchase, (i) no stop order with respect to the effectiveness
of the Registration Statement shall have been issued under the Act or proceedings initiated
under Rule 401(g)(2) or Section 8(d), 8(e) or 8A of the Act; (ii) the Registration Statement
and all amendments thereto filed after the date hereof, if any, shall not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and (iii) the Time of
Sale Information and the Prospectus and all amendments or supplements thereto filed
after the date hereof, if any, shall not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
-15-
(f) The Company shall, at the time of purchase, deliver to you a certificate dated as
of such date of an executive officer of the Company to the effect set forth in Sections
7(e), (h) and (i), that the representations and warranties of the Company set forth in this
Agreement are true and correct as of such date, and that the Company has complied with all
of its agreements and satisfied all of the conditions on its part to be performed or
satisfied pursuant to this Agreement on or before such date.
(g) The Company shall have furnished to you such other documents and certificates as
to the accuracy and completeness of any statement in the Time of Sale Information and the
Prospectus as of the time of purchase as you may reasonably request.
(h) Between the time of execution of this Agreement and the time of purchase, there
shall not have occurred any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or guaranteed by the
Company by any nationally recognized statistical rating organization, as that term is
defined in Rule 436(g)(2) promulgated under the Act.
(i) Between the time of execution of this Agreement and the time of purchase, there
shall not have occurred or become known any material adverse change, financial or otherwise
(other than as referred to in the Time of Sale Information and the Prospectus as of the date
hereof), in the business, condition or business prospects of the Company and its
subsidiaries, taken as a whole, that in the judgment of the Representatives makes it
impracticable to market the Notes.
8.
Effective Date of Agreement; Termination
: This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination by you
at any time prior to the time of purchase, if prior to such time (i) the Company shall have failed,
refused or been unable to perform in any material respect any agreement on its part to be performed
under this Agreement when and as required, (ii) any other condition to the obligations of the
Underwriters under this Agreement to be fulfilled by the Company pursuant to Section 7 is not
fulfilled when and as required in any material respect, (iii) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq Global Market shall have
been suspended or limitations or minimum prices shall have been established on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq Global Market, (iv) trading of any securities
issued or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market, (v) a general banking moratorium shall have been declared either by the
United States or New York State authorities, or if there has been a material
disruption in securities settlement or clearance services in the United States, or (vi) the
United States shall have declared war in accordance with the constitutional processes or there
shall have occurred any material outbreak or material escalation of hostilities or other national
or international calamity or crisis, in each case in this clause (vi) of such magnitude in its
-16-
effect on the financial markets of the United States as, in the judgment of the Representatives, to
make it impracticable to market the Notes.
If you elect to terminate this Agreement as provided in this Section 8, the Company shall be
notified as provided for herein.
If the sale to the Underwriters of the Notes, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement or if such sale is
not carried out because the Company shall be unable to comply and does not comply with any of the
terms of this Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 4(j), 6 and 10 hereof), and the Underwriters
shall be under no obligation or liability to the Company under this Agreement (except to the extent
provided in Section 10 hereof) or to one another hereunder.
9.
Increase in Underwriters Commitments
: Subject to Sections 7 and 8, if any
Underwriter shall default in its obligation to take up and pay for the Notes to be purchased by it
hereunder (otherwise than for a reason sufficient to justify the termination of this Agreement
under the provisions of Section 8 hereof) and if the aggregate principal amount of Notes which all
Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10%
of the total aggregate principal amount of Notes, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Notes they are obligated to purchase pursuant to
Section 1 hereof) the aggregate principal amount of Notes agreed to be purchased by all such
defaulting Underwriters, as hereinafter provided. Such Notes shall be taken up and paid for by
such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated, or in the event no such designation is made, such
Notes shall be taken up and paid for by all non-defaulting Underwriters pro rata in proportion to
the aggregate principal amount of Notes set opposite the names of such non-defaulting Underwriters
in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Notes hereunder unless all of
the Notes are purchased by the Underwriters (or by substituted Underwriters selected by you with
the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Time of Sale Information and the Prospectus and
other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 9 with like effect as if such substituted Underwriter had originally
been named in Schedule A.
-17-
If the aggregate principal amount of Notes which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total principal amount of Notes which all Underwriters agreed
to purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Notes
which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part of the Company to
any non-defaulting Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
10.
Indemnity and Contribution
: (a) The Company agrees to indemnify and hold
harmless each Underwriter, its partners, directors and officers, and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all the foregoing persons (each, an Underwriter Indemnified Party) from
and against any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter Indemnified Party may incur under
the Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Time of Sale Information, the Prospectus
(or any amendment or supplement thereto) or any Issuer Free Writing Prospectus or any omission or
alleged omission to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, in each case
except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in any such document
in reliance upon and in conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such Underwriter in such
document or arises out of or is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in such document or necessary to
make such statements not misleading.
(b) Each Underwriter, severally and not jointly, agrees to indemnify, defend and hold
harmless the Company, its directors and officers and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns
of all the foregoing persons (each, a Company Indemnified Party) from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly
or severally, any such Company Indemnified Party may incur under the Act,
the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein
-18-
not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Time of Sale Information, the Prospectus
(or any amendment or supplement thereto) or any Issuer Free Writing Prospectus or any omission or
alleged omission to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or omission or alleged untrue
statement or omission was made in reliance upon, and in conformity with, written information
concerning the Underwriters that was furnished in writing to the Company by the Representatives, on
behalf of the several Underwriters, specifically for use therein.
(c) If any action, suit or proceeding (each, a Proceeding) is brought against any person in
respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section
10, such person (the Indemnified Party) shall promptly notify the person against whom such
indemnity may be sought (the Indemnifying Party) in writing of the institution of such Proceeding
and such Indemnifying Party shall assume the defense of such Proceeding, including the employment
of counsel reasonably satisfactory to such Indemnified Party and payment of all fees and expenses;
provided
,
however
, that the omission to so notify such Indemnifying Party shall not
relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or
otherwise, except to the extent that the Indemnifying Party has been prejudiced in any material
respect by such omission to so notify. Such Indemnified Party shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless the employment of such counsel shall have been authorized in writing
by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying
Party shall not have employed counsel to have charge of the defense of such Proceeding within 30
days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded
upon written advice of counsel that there may be defenses available to it that are different from,
additional to, or in conflict with those available to such Indemnifying Party (in which case such
Indemnifying Party shall not have the right to direct that portion of the defense of such
Proceeding on behalf of such Indemnified Party, but such Indemnifying Party may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall
be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such
Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any
one Proceeding or series of related Proceedings together with reasonably necessary local counsel
representing the Indemnified Parties who are parties to such Proceeding). An Indemnifying Party
shall not be liable for any settlement of any such Proceeding effected without its written consent,
but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees
to indemnify and hold harmless an Indemnified Party from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified
Party shall have requested an Indemnifying Party to reimburse such Indemnified Party
for fees and expenses of counsel as contemplated by the second sentence of this paragraph,
then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such Indemnifying
-19-
Party of the aforesaid request, (ii) such Indemnifying
Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the
date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party
at least 30 days prior notice of its intention to settle. An Indemnifying Party shall not,
without the prior written consent of any Indemnified Party, effect any settlement of any pending or
threatened Proceeding in respect of which such Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability on claims that are
the subject matter of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 10 is held to be unavailable to an
Indemnified Party under subsections (a) and (b) of this Section 10 in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each applicable Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same respective proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the Company and
the underwriting discounts and commissions received by the Underwriters. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company or by the Underwriters
and the parties relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 10 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 that
does not take account of the equitable considerations referred to in subsection (d) above.
Notwithstanding the provisions of this Section 10, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes underwritten by
such Underwriter and distributed to the public were offered to the public exceeds the amount of any
damage which such Underwriter has otherwise been required to pay by reason
-20-
of such untrue statement
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 any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations to contribute pursuant to this Section 10 are several in proportion to
their respective underwriting commitments and not joint. The remedies provided for in this Section
10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to
any Indemnified Party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 10 and the covenants,
warranties and representations of the Company contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any Underwriter, its
partners, directors and officers or any person (including each partner, officer or director of such
person) who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or by or on behalf of the Company, its directors and officers or any person who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive the issuance and delivery of the Notes. In addition, the agreements contained in
Sections 4(j), 6, 10, 11 and 13 shall survive the termination of this Agreement, including pursuant
to Section 8. The Company and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company, against any of the
Companys officers or directors, in connection with the issuance and sale of the Notes, or in
connection with the Registration Statement, the Time of Sale Information or the Prospectus.
11.
Underwriters Information
: The Company and the Underwriters severally
acknowledge that the statements with respect to the offer and sale of the Notes set forth in the
third sentence of the third paragraph and in the fourth and fifth paragraphs in each case under the
caption Underwriting in the Preliminary Prospectus and the Prospectus (to the extent such
statements relate to the Underwriters) constitute the only information furnished in writing by the
Underwriters expressly for use in the Registration Statement, the Preliminary Prospectus, the Time
of Sale Information, the Prospectus or any Issuer Free Writing Prospectus as such information is
referred to in Sections 3 and 10 hereof.
12.
Notices
: Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by facsimile and, if to the Underwriters, shall be sufficient
in all respects if delivered or sent to the Representatives c/o Banc of America Securities LLC, One
Bryant Park, New York, New York 10036, Attention: High Grade Debt Capital Markets Transaction
Management/Legal, facsimile no. (212) 901-7881, J.P. Morgan Securities Inc., 270 Park Avenue, New
York, New York 10017, Attention: High Grade Syndicate Desk, facsimile no. (212) 834-6081 and UBS
Securities LLC, 677 Washington Blvd., Stamford, Connecticut 06901, Attention: Fixed Income
Syndicate Department, facsimile no. (203) 719-0495 and, if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the
Company at 20 North Broadway, Oklahoma City, Oklahoma 73102, Attention: General Counsel,
facsimile no. (405) 552-1400.
-21-
13.
Governing Law and Construction
: THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF
CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
14.
Parties at Interest
: The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and, to the extent provided in Section 10
hereof, the controlling persons, directors and officers referred to in such section, and their
respective successors, assigns, executors and administrators. No other person, partnership, heirs,
personal representatives, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
15.
Counterparts
: This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually
executed counterpart thereof.
16.
Successors and Assigns
: This Agreement shall be binding upon the Underwriters
and the Company and their successors and assigns and any successor or assign of any substantial
portion of the Companys and any of the Underwriters respective businesses and/or assets.
17.
No Fiduciary Duty
: The Company acknowledges that in connection with the offering
of the Notes: (i) the Underwriters have acted at arms-length, are not agents of, and owe no
fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only
those duties and obligations set forth in this Agreement and prior written agreements (to the
extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests
that differ from those of the Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Notes.
[Signature Page Follows]
-22-
If the foregoing correctly sets forth the understanding between the Company and the
Underwriters, please so indicate in the space provided below for the purpose, whereupon this letter
and your acceptance shall constitute a binding agreement between the Company and the Underwriters,
severally.
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Very truly yours,
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DEVON ENERGY CORPORATION
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By:
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/s/ Jeffrey A. Agosta
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Name: Jeffrey A. Agosta
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Title: Senior Vice President,
Corporate Finance and Treasurer
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Accepted and agreed to as of the date
first above written, on behalf of
itself
and the other several
Underwriters
named in Schedule A
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BANC OF AMERICA SECURITIES LLC
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By:
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/s/ Lily Chang
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Name: Lily Chang
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Title: Principal
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J.P. MORGAN SECURITIES INC.
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By:
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/s/ Maria Sramek
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Name: Maria Sramek
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Title: Executive Director
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UBS SECURITIES LLC
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By:
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/s/ Scott Whitney
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Name: Scott Whitney
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Title: Managing Director
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By:
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/s/ Mark W. Spadaccini
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Name: Mark W. Spadaccini
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Title: Associate Director
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SCHEDULE A
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Principal Amount of
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Principal Amount of
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Underwriter
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2014 Notes
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2019 Notes
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Banc of America Securities LLC
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$
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100,000,000
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$
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140,000,000
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J.P. Morgan Securities Inc.
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$
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100,000,000
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$
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140,000,000
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UBS Securities LLC
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$
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100,000,000
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$
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140,000,000
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Greenwich Capital Markets, Inc.
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$
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30,000,000
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$
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42,000,000
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Goldman, Sachs & Co.
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$
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30,000,000
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$
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42,000,000
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Morgan Stanley & Co. Incorporated
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$
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30,000,000
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$
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42,000,000
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Citigroup Global Markets Inc.
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$
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16,000,000
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$
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22,400,000
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Credit Suisse Securities (USA) LLC
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$
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16,000,000
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$
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22,400,000
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Deutsche Bank Securities Inc.
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$
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16,000,000
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$
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22,400,000
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BMO Capital Markets Corp.
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$
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16,000,000
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$
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22,400,000
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RBC Capital Markets Corporation
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$
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16,000,000
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$
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22,400,000
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Mitsubishi UFJ Securities
International plc
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$
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5,000,000
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$
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7,000,000
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Scotia Capital (USA) Inc.
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$
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5,000,000
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$
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7,000,000
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U.S. Bancorp Investments, Inc.
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$
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5,000,000
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$
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7,000,000
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SG Americas Securities, LLC
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$
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5,000,000
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$
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7,000,000
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Wells Fargo Securities, LLC
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$
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5,000,000
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$
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7,000,000
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Barclays Capital Inc.
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$
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5,000,000
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$
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7,000,000
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Total
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$
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500,000,000
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$
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700,000,000
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SCHEDULE B
TIME OF SALE INFORMATION
The term sheet attached as Schedule C hereto.
SCHEDULE C
TERM SHEET
Filed Pursuant to Rule 433
Registration No. 333-156025
January 6, 2009
$500,000,000
5.625% Senior Notes due 2014
$700,000,000
6.300% Senior Notes due 2019
TERM SHEET
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Issuer:
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Devon Energy Corporation (Bloomberg Ticker: DVN)
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Ratings:
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Baa1 (stable) Moodys / BBB+ (stable) S&P
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Securities:
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$500,000,000 5.625% Senior Notes due 2014
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$700,000,000 6.300% Senior Notes due 2019
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Format:
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SEC registered (global) (No. 333-156025)
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CUSIP / ISIN No.
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2014 Notes: 25179M AG8 / US25179MAG87
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2019 Notes: 25179M AH6 / US25179MAH60
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Trade Date:
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January 6, 2009
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Expected Settlement:
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January 9, 2009 (T+3)
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Maturity:
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2014 Notes: January 15, 2014
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2019 Notes: January 15, 2019
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Price To Public:
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2014 Notes: 99.774% of principal amount
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2019 Notes: 99.698% of principal amount
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Coupon:
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2014 Notes: 5.625% per year (payable semi-annually)
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2019 Notes: 6.300% per year (payable semi-annually)
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Interest Payment Dates:
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January 15
th
and July 15
th
, beginning July 15, 2009
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Benchmark Treasury:
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2014 Notes: 1.500% due December 31, 2013
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2019 Notes: 3.750% due November 15, 2018
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Benchmark Treasury Yield:
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2014 Notes: 1.677%
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2019 Notes: 2.491%
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Spread to Benchmark Treasury:
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2014 Notes: +400 basis points
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2019 Notes: +385 basis points
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Yield to Maturity:
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2014 Notes: 5.677%
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2019 Notes: 6.341%
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Make Whole Call At Any Time:
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The greater of 100% of principal amount or discounted present value
at Adjusted Treasury Rate +50 bps (0.50%) for the 2014 Notes and +50 bps (0.50%) for the 2019 Notes
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Denominations:
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$2,000 and multiples of $1,000 in excess of $2,000
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Use of Proceeds:
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Repayment of approximately $1 billion of outstanding commercial paper, and general corporate purposes
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Underwriting Discount:
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2014 Notes: 0.60%
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2019 Notes: 0.65%
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Joint Bookrunners:
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Banc of America Securities LLC
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J.P. Morgan Securities Inc.
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UBS Securities LLC
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Greenwich Capital Markets, Inc.
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Goldman, Sachs & Co.
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Morgan Stanley & Co. Incorporated
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Co-Managers:
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Citigroup Global Markets Inc.
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Credit Suisse Securities (USA) LLC
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Deutsche Bank Securities Inc.
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BMO Capital Markets Corp.
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RBC Capital Markets Corporation
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Junior Co-Managers:
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The Bank of Tokyo-Mitsubishi UFJ Securities (USA), Inc.
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Scotia Capital (USA) Inc.
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U.S. Bancorp Investments, Inc.
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SG Americas Securities, LLC
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Wells Fargo Securities, LLC
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Barclays Capital Inc.
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
toll free Banc of America Securities LLC at 1-800-294-1322, J.P. Morgan Securities Inc. at
212-834-4533 (collect) or UBS Securities LLC at 1-877 827-6444 (ext. 561-3884).
Exhibit A
FORM OF OPINION OF COUNSEL TO THE COMPANY
The opinion of Mayer Brown LLP, counsel for the Company (capitalized terms not otherwise
defined herein shall have the meanings provided in the Underwriting Agreement, to which this is an
Exhibit), to be delivered pursuant to Section 7(a) of the Underwriting Agreement shall be to the
effect that:
(i) Each of the Company and Devon Energy Production Company, L.P., Devon Energy Corporation
(Oklahoma) and Devon OEI Operating, L.L.C. (collectively, the
U.S. Significant
Subsidiaries
): (a) is validly existing and in good standing under the laws of the
jurisdiction of its incorporation, organization or formation; (b) to such counsels
knowledge, has all requisite corporate or other power and authority necessary to carry on
its business as it is currently being conducted and as described in the Registration
Statement, the Time of Sale Information and the Prospectus and to own, lease, license and
operate its respective properties in accordance with its business as currently conducted;
and (c) is qualified to do business and is in good standing in all other jurisdictions
identified by such counsel on a schedule attached to its opinion and based solely on
certificates of good standing from such identified jurisdictions. Based solely on
certificates of good standing issued by the Secretary of State of the State of Delaware,
each of the Company and Devon OEI Operating, L.L.C. is a corporation or limited liability
company duly incorporated or formed, as the case may be, under the laws of the State of
Delaware.
(ii) The Company has all requisite corporate power and authority to execute, deliver and
perform all of its obligations under the Operative Documents and to consummate the
transactions contemplated by the Operative Documents to be consummated on its part.
(iii) The Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Company.
(iv) The Indenture has been duly and validly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery thereof by the Trustee)
constitutes a legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors rights generally and by general principles of equity
and the discretion of the court before which any proceeding therefor may be brought.
(v) The Notes have been duly authorized and executed by the Company and when duly
authenticated in accordance with the terms of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the Underwriting
A-1
Agreement,
will constitute
legal, valid and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws affecting the
enforcement of creditors rights generally and by general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(vi) The Registration Statement, as of the Effective Date, the Preliminary Prospectus, as of
the Time of Sale, and the Prospectus, as of its date, complied as to form in all material
respects with the requirements of the Act (in each case, other than (a) the financial
statements and schedules and other financial data contained or incorporated by reference
therein or omitted therefrom or (b) the Statement of Eligibility on Form T-1 of the Trustee,
as to which such counsel need express no opinion).
(vii) The Registration Statement is an automatic shelf registration statement as defined
under Rule 405 of the Act that has been filed with the Commission not earlier than three
years prior to the date hereof, and the Indenture has been qualified under the Trust
Indenture Act; to the best of such counsels knowledge, no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company and no proceeding
for that purpose or pursuant to Section 8A of the Act against the Company or in connection
with the offering has been initiated or threatened by the Commission; and any required
filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act or of
any Issuer Free Writing Prospectus identified on Schedule B of the Underwriting Agreement
pursuant to Rule 433 under the Act has been made in the manner and within the time period
required by such Rule 424 or Rule 433, as the case may be.
(viii) The execution, delivery and performance by the Company of the Operative Documents,
including the consummation of the offer and sale of the Notes, does not or will not violate,
conflict with or constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both, would constitute a
default), or require consent under, or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any U.S. Significant
Subsidiary or an acceleration of any indebtedness of the Company or any U.S. Significant
Subsidiary pursuant to, (i) the charter, bylaws or other constitutive documents of the
Company or any U.S. Significant Subsidiary, (ii) to the knowledge of such counsel, any
Agreements and Instruments filed as an exhibit to the Companys Annual Report on Form 10-K
for the fiscal year ended December 31, 2007 or Quarterly Reports on Form 10-Q for the three
months ended March 31, 2008 and September 30, 2008, together with any amendments to such
Agreements or Instruments, (iii) to the knowledge of such counsel, any law, statute, rule or
regulation applicable to the Company or any U.S. Significant Subsidiary or its respective
assets or properties typical, in such counsels experience, for transactions contemplated by
the Operative Documents and assuming the accuracy of the representations and warranties of
the Company and the Underwriters in the Underwriting
A-2
Agreement and the due performance by
the Company and the Underwriters thereof or (iv) to the knowledge of such counsel, any
judgment, order or decree of any domestic or foreign
court or governmental agency or authority having jurisdiction over the Company or any U.S.
Significant Subsidiary or their respective assets or properties that, in the case of clauses
(ii) through (iv), would reasonably be expected, either individually or in the aggregate,
(1) to have a Material Adverse Effect or (2) to interfere with or adversely affect the
issuance of the Notes in any jurisdiction or adversely affect the consummation of the
transactions contemplated by any of the Operative Documents.
(ix) No consent, approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any United States court or governmental agency,
body or administrative agency is required to be obtained or made by the Company in
connection with the issue or sale of the Notes by the Company as contemplated by the
Underwriting Agreement, except (x) such as have been obtained or made on or prior to the
date hereof, (y) such as may be required under state securities and blue sky laws, or
(z) those for which the failure to obtain or make would not reasonably be expected, either
individually or in the aggregate (1) to have a Material Adverse Effect or (2) to interfere
with or adversely affect the issuance of the Notes in any jurisdiction or adversely affect
the consummation of the transactions contemplated by any of the Operative Documents.
(x) The Company is not, and after giving effect to the offering and sale of the Notes and
the application of the proceeds thereof as described in the Time of Sale Information and the
Prospectus will not be, required to register as an investment company within the meaning
of the Investment Company Act of 1940, as amended.
(xi) Each of the Notes and the Indenture conforms as to legal matters in all material
respects to the description thereof contained in the Time of Sale Information and the
Prospectus.
(xii) Each document filed under the Exchange Act and incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus (in each case, other
than the financial statements and related schedules and other financial data included
therein, as to which such counsel need express no opinion) when they were filed with the
Commission complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder.
(xiii) The statements in the Time of Sale Information and the Prospectus under the caption
Description of the Notes in so far as such statements constitute summaries of legal
matters or documents referred to therein, fairly summarize the matters referred to therein.
(xiv) In addition, such counsel shall state that they have participated in discussions with
your representatives, representatives of the Company, your counsel and representatives of
the Companys independent public accounting firm concerning the preparation of the
Registration Statement, the Time of Sale Information and the Prospectus.
A-3
Such counsel shall
state that, although they are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of any of the statements in the Registration
Statement, the Time of Sale Information and the Prospectus (except to the extent stated in
paragraphs (xi) and (xiii) above), no facts came to their attention that caused such counsel
to believe that (i) the Registration Statement, at the date of the Underwriting Agreement,
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 not misleading,
(ii) the Time of Sale Information, at the Time of Sale, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading or (iii) the
Prospectus or any amendment or supplement thereto as of its date and the time of purchase
contained or contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than (a) the financial
statements and schedules and other financial data contained or incorporated by reference
therein or omitted therefrom or (b) the Statement of Eligibility on Form T-1 of the Trustee,
as to which such counsel need express no belief).
A-4
Exhibit 4.1
DEVON ENERGY CORPORATION
to
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(as successor to The Bank of New York),
as Trustee
Supplemental Indenture No. 3
Dated as of January 9, 2009
to
Indenture
Dated as of March 1, 2002
$500,000,000 5.625% Senior Notes due 2014
$700,000,000 6.30% Senior Notes due 2019
SUPPLEMENTAL INDENTURE NO. 3, dated as of January 9, 2009 (this Supplemental Indenture),
between DEVON ENERGY CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the Company), and THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A., a national banking association and successor to The Bank of New York, as Trustee (herein
called the Trustee).
RECITALS OF THE COMPANY
The Company has heretofore delivered to the Trustee an Indenture, dated as of March 1, 2002
(the Senior Indenture), providing for the issuance from time to time of Debt Securities of the
Company.
Section 3.01 of the Senior Indenture provides that various matters with respect to any series
of Debt Securities issued under the Senior Indenture may be established in an indenture
supplemental to the Senior Indenture.
Section 12.01(f) of the Senior Indenture provides for the Company and the Trustee to enter
into an indenture supplemental to the Senior Indenture to establish the form or terms of Debt
Securities of any series as contemplated by Sections 2.01 and 3.01 of the Senior Indenture.
All the conditions and requirements necessary to make this Supplemental Indenture, when duly
executed and delivered, a valid and legally binding agreement in accordance with its terms and for
the purposes herein expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series of Debt Securities
provided for herein by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the series of Debt Securities provided for herein, as
follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1. RELATION TO SENIOR INDENTURE. This Supplemental Indenture constitutes an
integral part of the Senior Indenture.
SECTION 1.2. DEFINITIONS. The following definitions applicable to the series of Debt
Securities provided for herein shall be in addition to those indicated in Section 1.01 of the
Senior Indenture:
2014 Notes
shall have the meaning set forth in Section 2.1 of this Supplemental
Indenture.
2019 Notes
shall have the meaning set forth in Section 2.1 of this Supplemental
Indenture.
Adjusted Treasury Rate
means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Optional Redemption Comparable
Treasury Issue, calculated using a price for the Optional Redemption Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Optional Redemption Comparable
Treasury Price for such Redemption Date.
Independent Investment Banker
means an independent investment banking institution of
national standing appointed by the Company.
Notes
means the 2014 Notes and the 2019 Notes, individually and/or collectively, as
the context requires.
Optional Redemption Reference Treasury Dealer
means each of Banc of America
Securities LLC, J.P. Morgan Securities Inc. and UBS Securities LLC, and their respective
successors;
provided
that if any of the foregoing ceases to be, and has no affiliate that
is, a primary U.S. governmental securities dealer (each, a
Primary Treasury Dealer
), the
Company will substitute for it another Primary Treasury Dealer.
Optional Redemption Comparable Treasury Issue
means the U.S. Treasury security
selected by the Independent Investment Banker as having a maturity comparable to the
2
remaining term of the Notes to be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes to be redeemed or, if, in the
reasonable judgment of the Independent Investment Banker, there is no such security, then the
Optional Redemption Comparable Treasury Issue will mean the U.S. Treasury security or securities
selected by the Independent Investment Banker as having an actual or interpolated maturity or
maturities comparable to the remaining term of the Notes to be redeemed.
Optional Redemption Comparable Treasury Price
means the average of the Optional
Redemption Reference Treasury Dealer Quotations for the applicable Redemption Date.
Optional Redemption Reference Treasury Dealer Quotations
means, with respect to each
Optional Redemption Reference Treasury Dealer and any Redemption Date for the Notes, the average,
as determined by the Independent Investment Banker, of the bid and asked prices for the Optional
Redemption Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Independent Investment Banker and the Trustee at 5:00 p.m., New
York City time, on the third Business Day preceding such Redemption Date.
SECTION 1.3. RULES OF CONSTRUCTION. For all purposes of this Supplemental Indenture, except
as otherwise expressly provided for or unless the context otherwise requires:
(a) capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Senior Indenture; and
(b) all references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Supplemental Indenture.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. TITLE OF THE DEBT SECURITIES; DENOMINATIONS. There is hereby created under the
Senior Indenture a series of Debt Securities designated the 5.625% Senior Notes due 2014 (the 2014
Notes) and a series of Debt Securities designated the 6.30% Senior Notes due 2019 (the 2019
Notes). The Notes shall be issued in denominations of $2,000 and integral multiples of $1,000 in
excess of $2,000.
SECTION 2.2. LIMITATIONS ON AGGREGATE PRINCIPAL AMOUNT. The aggregate principal amount of
the 2014 Notes shall be initially limited to $500,000,000 and the aggregate principal amount of the
2019 Notes shall be initially limited to $700,000,000, subject, in each case, to the Companys
right to increase such limit following the original issuance of the Notes upon delivery to the
Trustee of a Company Order specifying any higher limit. Except as provided in this Section, the
Company shall not execute and the Trustee shall not authenticate or deliver the 2014 Notes or the
2019 Notes in excess of such aggregate principal amounts.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental Indenture, or in the
Notes, is intended to or shall limit execution by the Company or authentication or delivery by
3
the Trustee of the Notes under the circumstances contemplated in Sections 3.04, 3.05, 3.06,
4.06 and 12.06 of the Senior Indenture.
SECTION 2.3. INTEREST AND INTEREST RATES; MATURITY DATES. The 2014 Notes will bear interest
at a rate of 5.625% per annum and the 2019 Notes will bear interest at a rate of 6.30% per annum,
in each case from January 9, 2009 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, payable semiannually in arrears on January 15 and July 15 of
each year, commencing July 15, 2009 (each, an Interest Payment Date), to the Person in whose name
such Note is registered at the close of business on the January 1 or July 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date (each, a Regular
Record Date). Interest on the Notes will be computed on the basis of a 360-day year consisting of
twelve 30-day months. The interest so payable on any Note which is not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable to the Person in
whose name such Note is registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on the Special Record
Date or other specified date determined in accordance with Section 3.07 of the Senior Indenture.
The 2014 Notes will mature on January 15, 2014 and the 2019 Notes will mature on January 15,
2019.
SECTION 2.4. REDEMPTION.
(a) The Notes shall be redeemable before their Stated Maturity in accordance with this
Section 2.4 and otherwise in accordance with the provisions of Article IV of the Senior
Indenture. In the event of any conflict between this Section 2.4 (including the definitions
of terms used herein) and Article IV of the Senior Indenture (including the definitions of
terms used therein), this Section 2.4 shall control.
(b) The 2014 Notes may be redeemed at any time at the option of the Company as set
forth in the form of 2014 Note attached as
Exhibit A
hereto and the 2019 Notes may
be redeemed at any time at the option of the Company as set forth in the form of 2019 Note
attached as
Exhibit B
hereto.
SECTION 2.5. PLACES OF PAYMENT. The Places of Payment where the Notes may be presented or
surrendered for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Notes and the
Senior Indenture may be served shall be at the Corporate Trust Office of the Trustee in the State
of New York which shall initially be located at 101 Barclay Street, 8 West, New York, New York
10286.
SECTION 2.6. METHOD OF PAYMENT. Payment of the principal of, premium, if any, and interest
on Notes in definitive form will be made at the office or agency of the Company maintained for that
purpose in The City of New York (which shall initially be an office or agency of the Trustee), in
such coin or currency of the United States as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company, payments of
interest on the Notes may be made by check mailed to the
4
address of the Person entitled thereto as such address shall appear in the Debt Security
Register. Payment of the principal of, premium, if any, and interest on Notes represented by a
Global Security shall be made in immediately available funds to the Depositary or its nominee, as
the case may be, as the Holder of such Global Security.
SECTION 2.7. CURRENCY. Principal, premium, if any, and interest on the Notes shall be
payable in Dollars.
SECTION 2.8. REGISTERED SECURITIES; GLOBAL FORM. The Notes shall be issuable and
transferable in fully registered form, without coupons. The Notes shall each be issued in the form
of one or more permanent Global Securities. The Depositary for the Notes shall be The Depository
Trust Company. The Notes shall not be issuable in definitive form except as provided in Section
2.03 of the Senior Indenture.
SECTION 2.9. FORM OF NOTES. The 2014 Notes shall be substantially in the form attached as
Exhibit A
hereto and the 2019 Notes shall be substantially in the form attached as
Exhibit B
hereto.
SECTION 2.10. REGISTRAR AND PAYING AGENT. The Trustee shall initially serve as Debt
Security Registrar and Paying Agent for the Notes.
SECTION 2.11. EVENTS OF DEFAULT. In addition to the Events of Default specified in Section
8.01 of the Senior Indenture, the following shall constitute an Event of Default with respect to
each series of the Notes: any default by the Company in the payment of any principal of any Funded
Debt of the Company outstanding in an aggregate principal amount in excess of $50,000,000 at the
final stated maturity thereof or the occurrence of any other default thereunder, the effect of
which default is to cause such Funded Debt to become, or to be declared, due prior to its final
stated maturity if (A) such default in payment is not cured, by payment or otherwise, within 60
days after there has been given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in principal amount of the
outstanding Notes of such series, a written notice specifying such default and requiring it to be
remedied and stating that such notice is a Notice of Default under the Senior Indenture (each, a
Notice of Default), and the receipt by the Company of such Notice of Default or (B) the
acceleration is not rescinded or annulled or the default that caused the acceleration is not cured
within 60 days after the receipt by the Company of such Notice of Default.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. RATIFICATION OF SENIOR INDENTURE. Except as expressly modified or amended
hereby, the Senior Indenture continues in full force and effect and is in all respects confirmed
and preserved.
SECTION 3.2 GOVERNING LAW. This Supplemental Indenture and each Note shall be governed by
and construed in accordance with the laws of the State of New York, without regard to conflicts of
law principles thereof, except to the extent that the law of any other
5
jurisdiction shall be mandatorily applicable. This Supplemental Indenture is subject to the
provisions of the Trust Indenture Act of 1939, as amended and shall, to the extent applicable, be
governed by such provisions.
SECTION 3.3. COUNTERPARTS. This Supplemental Indenture 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.
SECTION 3.4. RECITALS. The recitals contained herein shall be taken as statements of the
Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental Indenture.
[signature page follows]
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed by their respective officers hereunto duly authorized, all as of the day and year first
written above.
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DEVON ENERGY CORPORATION
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By:
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/s/
Jeffrey A. Agosta
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Name:
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Jeffrey A. Agosta
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Title:
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Senior Vice President, Corporate
Finance and Treasurer
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. (as successor to The Bank of
New York), as Trustee
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By:
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/s/
Marcella Burgess
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Name:
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Marcella Burgess
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Title:
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Assistant Vice President
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7
Exhibit A to
Supplement Indenture No. 3.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC), 55 WATER STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A
NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF
DTC OR A NOMINEE OF SUCH SUCCESSOR.
DEVON ENERGY CORPORATION
5.625% Senior Notes due 2014
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Registered No. ___
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PRINCIPAL AMOUNT
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CUSIP NO. 25179MAG8
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$
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DEVON ENERGY CORPORATION, a Delaware corporation (herein referred to as the Company, which
term includes any successor entity under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to
, or registered assigns, upon presentation,
the principal sum of $
on January 15, 2014 (the Stated Maturity Date) and to pay
interest thereon from January 9, 2009 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually in arrears on January 15 and July 15 of
each year (each, an Interest Payment Date), commencing July 15, 2009, at the rate of 5.625% per
annum, until the principal hereof is paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the January 1 and July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date at the office or agency of the Company maintained for such
purpose; PROVIDED, HOWEVER, that such interest may be paid, at the Companys option, by mailing a
check to such Holder at its registered address; PROVIDED, FURTHER, that if this Debt Security is a
Global Security, such interest shall be paid in immediately available funds to the Depositary or
its nominee, as the case may be, as the Holder of this Debt Security. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the
A-1
Holder in whose name this Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debt Securities of
this series not less than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Debt Securities of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
The principal of this Debt Security payable on the Stated Maturity Date or the principal of,
premium, if any, and, if the Redemption Date is not an Interest Payment Date, interest on this Debt
Security payable on the Redemption Date will be paid against presentation of this Debt Security 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 America as at the time of payment is legal tender for the
payment of public and private debts.
Interest payable on this Debt Security on any Interest Payment Date and on the Stated Maturity
Date or Redemption Date, as the case may be, will include interest accrued from and including the
next preceding Interest Payment Date in respect of which interest has been paid or duly provided
for (or from and including January 9, 2009, if no interest has been paid on this Debt Security) to
but excluding such Interest Payment Date or the Stated Maturity Date or Redemption Date, as the
case may be. If any Interest Payment Date or the Stated Maturity Date or Redemption Date falls on
a day that is not a Business Day, principal, premium, if any, and/or interest payable with respect
to such Interest Payment Date or Stated Maturity Date or Redemption Date, as the case may be, will
be paid on the next succeeding Business Day with the same force and effect as if it were paid on
the date such payment was due, and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date or Stated Maturity Date or Redemption Date, as the case
may be.
All payments of principal, premium, if any, and interest in respect of this Debt Security will
be made by the Company in immediately available funds.
Reference is hereby made to the further provisions of this Debt Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee by manual
signature of one of its authorized signatories, this Debt Security shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by one of its duly
authorized officers.
Dated:
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DEVON ENERGY CORPORATION
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By:
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Name:
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Title:
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. (as successor to The Bank of
New York), as Trustee
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By:
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Authorized Signatory
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A-3
[Reverse of Security]
DEVON ENERGY CORPORATION
This Debt Security is one of a duly authorized issue of securities of the Company (herein
called the Debt Securities), issued and to be issued in one or more series under an Indenture,
dated as of March 1, 2002, as supplemented by Supplemental Indenture No. 3, dated as of January 9,
2009 (as so supplemented, herein called the Indenture), between the Company and The Bank of New
York Mellon Trust Company, N.A. (as successor to The Bank of New York), as Trustee (herein called
the Trustee, which term includes any successor trustee under the Indenture with respect to the
series of which this Debt Security is a part), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Debt
Securities, and of the terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Debt Security is one of the duly authorized series of Debt Securities designated
on the face hereof, and the aggregate principal amount of the Debt Securities to be issued under
such series is initially limited to $500,000,000, subject to the Companys right to increase such
limit as provided in the Indenture (except for Debt Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Debt Securities). All terms used in this Debt
Security which are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
If an Event of Default, as defined in the Indenture, with respect to the Debt Securities of
this series, shall occur and be continuing, the principal amount of the Debt Securities of this
series and interest accrued thereon may be declared due and payable in the manner and with the
effect provided in the Indenture.
This Debt Security will be redeemable, in whole or in part, at any time, at the Companys
option, at a redemption price equal to the greater of (1) 100% of the principal amount of this Debt
Security then Outstanding to be redeemed, or (2) the sum of the present values of the remaining
scheduled payments of principal and interest hereon (exclusive of interest accrued to the
Redemption Date) from the Redemption Date to the Stated Maturity Date computed by discounting such
payments to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at a rate equal to the sum of 50 basis points plus the Adjusted Treasury Rate on the
third Business Day prior to the Redemption Date, as calculated by an Independent Investment Banker,
plus, in each case, accrued and unpaid interest up to, but not including, the Redemption Date.
Notice of redemption will be given by mail to Holders of Debt Securities, not less than 30 nor
more than 60 days prior to the Redemption Date, all as provided in the Indenture.
This Debt Security may be redeemed in part only in multiples of $1,000 in principal amount.
In the event of redemption of this Debt Security in part only, a new Debt Security or Debt
Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
A-4
The Indenture permits, with certain exceptions as provided therein, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Debt Securities under the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount of all Debt Securities
issued under the Indenture at the time Outstanding and directly affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Debt Securities, on behalf of the Holders of all such
securities, to waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the
aggregate principal amount, in certain instances, of the Outstanding Debt Securities of any series
to waive, on behalf of all of the Holders of Debt Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debt
Security shall be conclusive and binding upon such Holder and upon all future Holders of this Debt
Security and other Debt Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debt
Security.
No reference herein to the Indenture and no provision of this Debt Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of, premium, if any, and interest on this Debt Security at the times, places
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and herein set forth,
the transfer of this Debt Security is registrable in the Debt Security Register of the Company upon
surrender of this Debt Security for registration of transfer at the office or agency of the Company
in any place where the principal of, premium, if any, and interest on this Debt Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer, in form satisfactory
to the Company and the Debt Security Registrar, duly executed by the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Debt Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and herein set forth,
this Debt Security is exchangeable for a like aggregate principal amount of Debt Securities of
different authorized denominations but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same.
The Debt Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiples of $1,000 in excess of $2,000.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Debt Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Debt
Security is registered as the owner hereof for all purposes, whether or not this Debt
A-5
Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium, if any, or the
interest on this Debt Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto, against any past,
present or future stockholder, employee, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
The Indenture and the Debt Securities shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be performed entirely in
such State.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Debt Securities of this
series as a convenience to the Holders of such Debt Securities. No representation is made as to
the correctness or accuracy of such CUSIP numbers as printed on the Debt Securities, and reliance
may be placed only on the other identification numbers printed hereon.
A-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please Print or Type Name and Address Including Zip Code of Assignee)
the within Debt Security of Devon Energy Corporation and hereby does irrevocably constitute and appoint
Attorney to transfer said security on the books of the within-named Corporation with full power of substitution in the premises.
(Please Insert Social Security or Other Identifying Number of Assignee)
Dated:
SIGNATURE OF GUARANTEE
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of The Bank of New York Mellon Trust Company, N.A., 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 Bank of New York Mellon Trust Company, N.A. in addition to, or
in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
NOTICE: The signature to this assignment must correspond with the name as it appears on the first page of the within Debt Security in every particular, without alteration or enlargement of any change whatever.
A-7
Exhibit B to
Supplement Indenture No. 3.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC), 55 WATER STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A
NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF
DTC OR A NOMINEE OF SUCH SUCCESSOR.
DEVON ENERGY CORPORATION
6.30% Senior Notes due 2019
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Registered No. ___
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PRINCIPAL AMOUNT
|
CUSIP NO. 25179MAH6
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$
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DEVON ENERGY CORPORATION, a Delaware corporation (herein referred to as the Company, which
term includes any successor entity under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to
, or registered assigns, upon presentation,
the principal sum of $
on January 15, 2019 (the Stated Maturity Date) and to pay
interest thereon from January 9, 2009 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually in arrears on January 15 and July 15 of
each year (each, an Interest Payment Date), commencing July 15, 2009, at the rate of 6.30% per
annum, until the principal hereof is paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the January 1 and July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date at the office or agency of the Company maintained for such
purpose; PROVIDED, HOWEVER, that such interest may be paid, at the Companys option, by mailing a
check to such Holder at its registered address; PROVIDED, FURTHER, that if this Debt Security is a
Global Security, such interest shall be paid in immediately available funds to the Depositary or
its nominee, as the case may be, as the Holder of this Debt Security. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the
B-1
Holder in whose name this Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debt Securities of
this series not less than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Debt Securities of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
The principal of this Debt Security payable on the Stated Maturity Date or the principal of,
premium, if any, and, if the Redemption Date is not an Interest Payment Date, interest on this Debt
Security payable on the Redemption Date will be paid against presentation of this Debt Security 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 America as at the time of payment is legal tender for the
payment of public and private debts.
Interest payable on this Debt Security on any Interest Payment Date and on the Stated Maturity
Date or Redemption Date, as the case may be, will include interest accrued from and including the
next preceding Interest Payment Date in respect of which interest has been paid or duly provided
for (or from and including January 9, 2009, if no interest has been paid on this Debt Security) to
but excluding such Interest Payment Date or the Stated Maturity Date or Redemption Date, as the
case may be. If any Interest Payment Date or the Stated Maturity Date or Redemption Date falls on
a day that is not a Business Day, principal, premium, if any, and/or interest payable with respect
to such Interest Payment Date or Stated Maturity Date or Redemption Date, as the case may be, will
be paid on the next succeeding Business Day with the same force and effect as if it were paid on
the date such payment was due, and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date or Stated Maturity Date or Redemption Date, as the case
may be.
All payments of principal, premium, if any, and interest in respect of this Debt Security will
be made by the Company in immediately available funds.
Reference is hereby made to the further provisions of this Debt Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee by manual
signature of one of its authorized signatories, this Debt Security shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by one of its duly
authorized officers.
Dated: ______________
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DEVON ENERGY CORPORATION
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By:
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Name:
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Title:
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated: _____________
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. (as
successor to The Bank of New York), as Trustee
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By:
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Authorized Signatory
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B-3
[Reverse of Security]
DEVON ENERGY CORPORATION
This Debt Security is one of a duly authorized issue of securities of the Company (herein
called the Debt Securities), issued and to be issued in one or more series under an Indenture,
dated as of March 1, 2002, as supplemented by Supplemental Indenture No. 3, dated as of January 9,
2009 (as so supplemented, herein called the Indenture), between the Company and The Bank of New
York Mellon Trust Company, N.A. (as successor to The Bank of New York), as Trustee (herein called
the Trustee, which term includes any successor trustee under the Indenture with respect to the
series of which this Debt Security is a part), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Debt
Securities, and of the terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Debt Security is one of the duly authorized series of Debt Securities designated
on the face hereof, and the aggregate principal amount of the Debt Securities to be issued under
such series is initially limited to $700,000,000, subject to the Companys right to increase such
limit as provided in the Indenture (except for Debt Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Debt Securities). All terms used in this Debt
Security which are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
If an Event of Default, as defined in the Indenture, with respect to the Debt Securities of
this series, shall occur and be continuing, the principal amount of the Debt Securities of this
series and interest accrued thereon may be declared due and payable in the manner and with the
effect provided in the Indenture.
This Debt Security will be redeemable, in whole or in part, at any time, at the Companys
option, at a redemption price equal to the greater of (1) 100% of the principal amount of this Debt
Security then Outstanding to be redeemed, or (2) the sum of the present values of the remaining
scheduled payments of principal and interest hereon (exclusive of interest accrued to the
Redemption Date) from the Redemption Date to the Stated Maturity Date computed by discounting such
payments to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at a rate equal to the sum of 50 basis points plus the Adjusted Treasury Rate on the
third Business Day prior to the Redemption Date, as calculated by an Independent Investment Banker,
plus, in each case, accrued and unpaid interest up to, but not including, the Redemption Date.
Notice of redemption will be given by mail to Holders of Debt Securities, not less than 30 nor
more than 60 days prior to the Redemption Date, all as provided in the Indenture.
This Debt Security may be redeemed in part only in multiples of $1,000 in principal amount.
In the event of redemption of this Debt Security in part only, a new Debt Security or Debt
Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
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The Indenture permits, with certain exceptions as provided therein, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Debt Securities under the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount of all Debt Securities
issued under the Indenture at the time Outstanding and directly affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Debt Securities, on behalf of the Holders of all such
securities, to waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the
aggregate principal amount, in certain instances, of the Outstanding Debt Securities of any series
to waive, on behalf of all of the Holders of Debt Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debt
Security shall be conclusive and binding upon such Holder and upon all future Holders of this Debt
Security and other Debt Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debt
Security.
No reference herein to the Indenture and no provision of this Debt Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of, premium, if any, and interest on this Debt Security at the times, places
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and herein set forth,
the transfer of this Debt Security is registrable in the Debt Security Register of the Company upon
surrender of this Debt Security for registration of transfer at the office or agency of the Company
in any place where the principal of, premium, if any, and interest on this Debt Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer, in form satisfactory
to the Company and the Debt Security Registrar, duly executed by the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Debt Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and herein set forth,
this Debt Security is exchangeable for a like aggregate principal amount of Debt Securities of
different authorized denominations but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same.
The Debt Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiples of $1,000 in excess of $2,000.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Debt Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Debt
Security is registered as the owner hereof for all purposes, whether or not this Debt
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Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium, if any, or the
interest on this Debt Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto, against any past,
present or future stockholder, employee, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
The Indenture and the Debt Securities shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be performed entirely in
such State.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Debt Securities of this
series as a convenience to the Holders of such Debt Securities. No representation is made as to
the correctness or accuracy of such CUSIP numbers as printed on the Debt Securities, and reliance
may be placed only on the other identification numbers printed hereon.
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please Print or Type Name and Address Including Zip Code of Assignee)
the within Debt Security of Devon Energy Corporation and hereby does irrevocably constitute and
appoint
Attorney to transfer said security on the books of the
within-named Corporation with full power of substitution in the premises.
(Please Insert Social Security or Other Identifying Number of Assignee)
Dated:
SIGNATURE OF GUARANTEE
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements
of The Bank of New York Mellon Trust Company, N.A., 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 Bank of New York Mellon Trust Company, N.A. in
addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
NOTICE: The signature to this assignment must correspond with the name as it appears on the
first page of the within Debt Security in every particular, without alteration or enlargement of
any change whatever.
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