EXHIBIT 8
XXXXXX X. XXXXXX
0000 Xxx Xxxxxx #00X
Xxxxxxx, XX 00000
XXXXXX FOUNDATION
0000 Xxxx Xxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
November 27, 2002
Anadarko Petroleum Corporation
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000-0000
Re: Donation of Shares
Dear Sirs:
Xxxxxx X. Xxxxxx, the undersigned stockholder (the
"Stockholder") of Xxxxxx Corporation ("Xxxxxx"), is party to a Support/Voting
Agreement (the "Voting Agreement"), dated September 26, 2002, between the
Stockholder and Anadarko Petroleum Corporation ("Anadarko") a copy of which is
attached as Exhibit A to this letter agreement. The Voting Agreement relates to
the Agreement and Plan of Merger, dated as of September 29, 2002, by and among
Anadarko, Belair Merger Corp. ("Subcorp") and Xxxxxx (the "Merger Agreement").
The Merger Agreement provides for, among other things, the merger of Subcorp
with and into Xxxxxx (the "Merger"). Capitalized terms which are used herein but
not defined herein shall have their respective meaning as set forth in the
Voting Agreement.
In accordance with Section 5 of the Voting Agreement, at the
request of Anadarko, immediately prior to the execution of this letter
agreement, the Stockholder has executed and delivered to Anadarko an irrevocable
proxy, a copy of which is attached hereto as Exhibit B (the "Proxy"), with
respect to all of the shares set forth in Schedule I to the Voting Agreement.
The Stockholder acknowledges that, pursuant to Section 2 of
the Voting Agreement, the Stockholder shall not, and shall not permit any
company, trust or other entity controlled by the Stockholder to, contract to
sell, sell or otherwise transfer or dispose of any of the shares of the capital
stock of Xxxxxx listed in Schedule I to the Voting Agreement or any interest
therein or securities convertible thereinto or any voting rights with respect
thereto, other than (a) pursuant to the Merger or (b) with Anadarko's prior
written consent.
The Stockholder wishes to transfer 99,321 shares of common
stock of Xxxxxx (collectively, the "Donated Shares") to Xxxxxx Foundation (the
"Donee") and the Donee wishes to receive from the Stockholder the Donated Shares
(the "Donation"), and accordingly the
Andarko Petroleum Corporation
Page 2
Stockholder and the Donee hereby seek Anadarko's consent under the Voting
Agreement to effect the Donation.
Anadarko has advised the Stockholder that it is willing to
consent to the Donation but only on the basis that Anadarko is assured of
receiving from and after the Donation the benefits intended to be provided to
Anadarko under the Voting Agreement. Accordingly, by executing and delivering
this letter agreement to Anadarko, the Stockholder and the Donee hereby
acknowledge and agree to the following:
1. In accordance with Section 11 of the Voting Agreement, the
Donee agrees that, from and after the Donation, it shall be bound by the terms
of the Voting Agreement with respect to the Donated Shares, provided, however,
that the Donee may sell Donated Shares in open market regular way transactions
on the New York Stock Exchange to unknown purchasers. The Stockholder agrees
that it is, and from and after the Donation remains, bound by the terms of the
Voting Agreement with respect to all of the Shares, including the Donated
Shares, and that the Voting Agreement shall remain in full force and effect.
2. The Proxy is a valid irrevocable proxy with respect to the
Shares, executed and delivered by the Stockholder to Anadarko in accordance with
the Voting Agreement, and is coupled with an interest within the meaning of
Section 212(e) of the Delaware General Corporation Law, both prior to and
following consummation of the Donation.
3. During the term of the Voting Agreement, (a) the
Stockholder shall not revoke, and shall not take any action which may have the
effect of revoking, the Proxy prior to the termination of the Voting Agreement,
(b) the Stockholder shall not grant any form of proxy or power of attorney to
any person or entity, including the Donee, with respect to the Shares or any
portion thereof, including the Donated Shares, and (c) the Donee shall not take
any action seeking to invalidate or cause the revocation of the Proxy or seeking
any other proxy with respect to the Donated Shares.
4. Unless the Proxy shall expire, be deemed invalid or revoked
or otherwise not given effect for any reason, during the term of the Voting
Agreement, the Donee shall not seek to vote, or attempt to grant any form of
proxy or power of attorney to vote, the Shares or any portion thereof, including
the Donated Shares. If and to the extent the Proxy shall expire, be deemed
invalid or revoked or otherwise not given effect for any reason, during the term
of the Voting Agreement, (a) the Donee shall immediately execute and deliver a
valid irrevocable proxy with respect to the Donated Shares in the form of Annex
A to the Voting Agreement to Anadarko, and (b) the Stockholder shall immediately
execute and deliver a valid irrevocable proxy with respect to all of the Shares
over which it has voting power in the form of Annex A to the Voting Agreement to
Anadarko in accordance with the Voting Agreement.
5. (a) Prior to, and as a condition to, effecting the
Donation, the following legend shall be affixed to the certificates representing
the Donated Shares, and shall not be removed prior to the termination of the
Voting Agreement, provided, however, that Anadarko shall promptly agree to
removal of the legend if Anadarko is reasonably assured that
Andarko Petroleum Corporation
Page 3
the Donated Shares are being sold in open market regular way transactions on the
New York Stock Exchange to unknown purchasers:
The shares of Xxxxxx Common Stock represented hereby (the "Shares") are
subject to a Support/Voting Agreement dated as of September 27, 2002
and a Letter Agreement dated as of November __, 2002 pursuant to which
the Shares are subject to limitations on transfer (except for open
market regular way transactions on the New York Stock Exchange to
unknown purchasers) and pursuant to which an irrevocable proxy coupled
with an interest has been executed and delivered in favor of Anadarko
Petroleum Corporation. A copy of each of the Support/Voting Agreement,
the Letter Agreement and the irrevocable proxy are on file, and
available from, the Xxxxxx Corporation corporate secretary.
(b) Simultaneously with the execution of this letter
agreement, Stockholder and Donee have provided Anadarko with, or have caused to
be provided to Anadarko, a true and complete photocopy of the certificate(s)
representing the Donated Shares, including the legend required under Subsection
(a) which has been affixed thereto, and all stock powers or endorsements
executed by or on behalf of the Stockholder to effect the Donation of the
Donated Shares to the Donee.
6. Upon the request of Anadarko, each of the Donee and the
Stockholder shall promptly take such other action and shall execute and deliver
such other documents and instruments as may be necessary to deliver to Anadarko
the benefits intended to be provided to Anadarko under the Voting Agreement.
7. Each of the Donee and the Stockholder represents and
warrants that he, she or it has all necessary power and authority to enter into
this letter agreement. This letter agreement (including the terms and conditions
of the Voting Agreement) is the legal, valid and binding agreement of each of
the Stockholder and the Donee, and is enforceable against each of the
Stockholder and the Donee in accordance with its terms.
8. Each of the Stockholder and the Donee agrees that damages
are an inadequate remedy for the breach by the Stockholder or the Donee of any
term or condition of this letter agreement (including the terms and conditions
of the Voting Agreement), and that Anadarko shall be entitled to a temporary
restraining order and preliminary and permanent injunctive relief in order to
enforce the agreements herein.
9. This letter agreement shall be governed by the laws of the
State of Delaware without regard to the principles of conflicts of laws thereof.
All actions and proceedings arising out of or relating to this letter agreement
shall be heard and determined in any state or federal court sitting in the
District of Delaware.
10. Each of the Stockholder and the Donee irrevocably submits
to the exclusive jurisdiction of the state courts of Delaware and to the
jurisdiction of the United States District Court for the District of Delaware,
for the purpose of any action or proceeding arising out of or relating to this
letter agreement and each of the Stockholder and the Donee irrevocably
Andarko Petroleum Corporation
Page 4
agrees that all claims in respect to such action or proceeding may be heard and
determined exclusively in any state or federal court sitting in the District of
Delaware. Each of the Stockholder and the Donee agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each of the Stockholder and the Donee irrevocably consents to the service of any
summons and complaint and any other process in any other action or proceeding
relating hereto, on behalf of itself or its property, by the personal delivery
of copies of such process to such party. Nothing in this Section 10 shall affect
the right of any party hereto to serve legal process in any other manner
permitted by law.
11. This letter agreement, together with the Voting Agreement,
constitutes the entire agreement among the parties hereto with respect to the
matters covered hereby and supersedes all prior agreements, understandings or
representations among the parties written or oral, with respect to the subject
matter hereof.
12. This letter agreement shall remain in effect during the
term of the Voting Agreement.
* * *
In consideration of and subject to the foregoing, by executing and returning a
copy of this letter agreement to each of the Stockholder and the Donee, Anadarko
hereby consents to the Donation.
Andarko Petroleum Corporation
Page 5
Very truly yours,
Stockholder:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Donee:
Xxxxxx Foundation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Xxxxxx Foundation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Xxxxxx Foundation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
Xxxxxx Foundation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Andarko Petroleum Corporation
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Confirmed on the date
first above written.
Anadarko Petroleum Corporation
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
