Exhibit 2(c)
STOCK OPTION AGREEMENT, dated as of the 11th day
of August, 1998 (this "Agreement"), between Amoco
Corporation, an Indiana corporation ("Issuer"), and The
British Petroleum Company p.l.c., an English public limited
company (including any assigns permitted under Section11
hereof, "Grantee").
RECITALS
A. The Merger Agreement. Prior to the entry
into this Agreement and prior to the grant of the Option (as
defined in Section1(a)), Issuer, Grantee, and Eagle
Holdings, Inc., an Indiana corporation and a wholly-owned
subsidiary of Grantee ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), pursuant to which Grantee and
Issuer intend to effect the Merger (as defined in the Merger
Agreement).
B. The Stock Option Agreement. As an inducement
and condition to Grantee's willingness to enter into the
Merger Agreement, and in consideration thereof, the board of
directors of Issuer has approved the grant to Grantee of the
Option pursuant to this Agreement and the acquisition of
Common Stock (as defined below) by Grantee pursuant to this
Agreement; provided, that such grant was expressly
conditioned upon, and made to have no effect until after,
execution and delivery by Issuer, Grantee and Merger Sub of
the Merger Agreement.
C. Capitalized Terms. Capitalized terms used
herein but not defined herein shall have the meanings
ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements set forth herein and
in the Merger Agreement, the parties hereto agree as
follows:
1. The Option. (a) Issuer hereby grants to
Grantee an unconditional, irrevocable option (the "Option")
to purchase, subject to the terms hereof, up to 189,783,270
fully paid and nonassessable shares ("Option Shares") of
common stock, without par value ("Common Stock"), of Issuer
at a price per share in cash equal to $41.00 (subject to
adjustment in accordance with this Agreement, the "Option
Price"); provided, however, that in no event shall the
number of Option Shares exceed 19.9% of the shares of Common
Stock issued and outstanding at the time of exercise
(without giving effect to the Option Shares issued or
issuable under the Option) (the "Maximum Applicable
Percentage"). The number of Option Shares purchasable upon
exercise of the Option and the Option Price are subject to
adjustment as set forth herein.
(b) In the event that any additional shares of
Common Stock are issued or otherwise become outstanding
after the date of this Agreement (other than pursuant to
this Agreement), the aggregate number of Option Shares
purchasable upon exercise of the Option shall automatically
be increased (without any further action on the part of
Issuer or Grantee being necessary) so that, taking into
consideration any such issuance, such aggregate number
equals the Maximum Applicable Percentage.
(c) The Option Price with respect to the Option
Shares as to which Grantee may propose to exercise this
Option pursuant to Section 2, or to request the repurchase
of this Option by Issuer pursuant to Section 9 (in either
case, the "Proposed Exercise Shares"), shall not be greater
than, and shall be adjusted downward to the extent necessary
to be, the Maximum Option Price (as defined below). The
"Maximum Option Price" with respect to any Proposed Exercise
Shares shall be that price per share in cash at which the
Option must be exercisable in order to result in a Total
Profit (as defined in Section 19) to Grantee, determined as
of the date of such proposal, of $50,000,000, assuming that
this Option were exercised on such date for all of the
Option Shares subject to this Option and assuming that all
of such Option Shares were sold for cash at the closing
market price on the New York Stock Exchange, Inc. (the
"NYSE") for the Common Stock as of the close of business on
the preceding trading day (less customary brokerage
commissions).
2. Exercise; Closing. (a) Conditions to
Exercise; Termination. Grantee may exercise the Option, in
whole but not in part, by giving a written notice thereof as
provided in Section 2(d) within 180 days following the
occurrence of a Triggering Event (as defined in Section
2(b)) unless prior to the giving of such notice the
Effective Time (as defined in the Merger Agreement) shall
have occurred. The Option shall terminate upon either
(i)the occurrence of the Effective Time or (ii) the close of
business on the earlier of (x) the day 180 days after the
date that Issuer has paid to Grantee the maximum amount of
the Amoco Termination Amount which could be payable pursuant
to Section 5.5.2 of the Merger Agreement and (y) the date
that Grantee is no longer potentially entitled to receive
any payment upon termination of the Merger Agreement
pursuant to Section5.5.2 of the Merger Agreement.
(b) Triggering Event. A "Triggering Event" shall
have occurred if the Merger Agreement is terminated and
Grantee becomes entitled to receive the maximum amount of
the Amoco Termination Amount which could be payable pursuant
to Section 5.5.2 of the Merger Agreement.
(c) Notice of Triggering Event by Issuer. Issuer
shall notify Grantee promptly in writing of the occurrence
of any Triggering Event and the number of shares of Common
Stock issued and outstanding as of the date of such notice,
it being understood that the giving of such notice by Issuer
shall not be a condition to the right of Grantee to exercise
the Option.
(d) Notice of Exercise by Grantee. If Grantee
shall be entitled to and wishes to exercise the Option, it
shall send to Issuer a written notice (an "Exercise Notice"
and the date of which is referred to herein as the "Notice
Date") specifying (i) the total amount payable to Issuer on
the exercise of the Option in respect of the Option Shares
and (ii)a place and date (the "Closing Date") not earlier
than three business days nor later than 60 business days
from the Notice Date for the closing of such purchase (the
"Closing"); provided, that if a filing is required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), or prior notification to or
approval of any other regulatory authority in the U.S., U.K.
or elsewhere is required in connection with such purchase,
Grantee and Issuer, as required, promptly after the giving
of the Exercise Notice shall file any and all required
notices, applications or other documents necessary for
approval and shall expeditiously process the same and in
such event the period of time referred to in clause(ii)
shall commence on the date on which Grantee furnishes to
Issuer a supplemental written notice setting forth the
Closing Date, which notice shall be furnished as promptly as
practicable after all required notification periods shall
have expired or been terminated and all required approvals
shall have been obtained and all requisite waiting periods
shall have passed. Each of Grantee and the Issuer agrees to
use all reasonable efforts to cooperate with and provide
information to Issuer or Grantee, as the case may be, with
respect to any required notice or application for approval
to such regulatory authority.
(e) Payment of Purchase Price. At the Closing,
Grantee shall pay to Issuer the aggregate Option Price for
the Option Shares in immediately available funds by a wire
transfer to a bank account designated by Issuer; provided,
that failure or refusal of Issuer to designate such a bank
account shall not preclude Grantee from exercising the
Option.
(f) Delivery of Common Stock. At the Closing,
simultaneously with the payment of the purchase price by
Grantee, Issuer shall deliver to Grantee or such other
person as Grantee may nominate in writing, a certificate or
certificates representing the number of Option Shares
purchased by Grantee.
(g) Restrictive Legend. Certificates for Common
Stock delivered at the Closing may be endorsed with a
restrictive legend that shall read substantially as follows:
"The transfer of the shares represented by this
certificate is subject to resale restrictions arising under
the Securities Act of 1933, as amended."
It is understood and agreed that the above legend shall be
removed by delivery of substitute certificate(s) without
such reference if Grantee shall have delivered to Issuer a
copy of a letter from the staff of the Securities and
Exchange Commission, or a written opinion of counsel, in
form and substance reasonably satisfactory to Issuer, to the
effect that such legend is not required for purposes of the
Securities Act of 1933, as amended. In addition, such
certificates shall bear any other legend as may be required
by applicable law.
(h) Ownership of Record; Tender of Purchase
Price; Expenses. Upon the tender of the applicable purchase
price in immediately available funds (following the giving
of the Exercise Notice), Grantee shall be deemed to be the
holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books
of Issuer may then be closed or that certificates
representing such shares of Common Stock may not have been
delivered to Grantee. Issuer shall pay all expenses, and
any and all federal, national, state, provincial and local
taxes and other charges worldwide that may be payable in
connection with the preparation, issuance and delivery of
stock certificates under this Section2 in the name of
Grantee or its nominee, assignee, transferee or designee.
3. Covenants of Issuer. In addition to its other
agreements and covenants herein, Issuer agrees:
(a) Shares Reserved for Issuance. To maintain, free
from preemptive rights, sufficient authorized but unissued
or treasury shares of Common Stock so that the Option may be
fully exercised without additional authorization of Common
Stock after giving effect to all other options, warrants,
convertible securities and other rights of third parties to
purchase shares of Common Stock from Issuer, and to issue
the appropriate number of shares of Common Stock pursuant to
the terms of this Agreement;
(b) No Avoidance. Not to avoid or seek to avoid
(whether by charter amendment or through reorganization,
consolidation, merger, issuance of rights, dissolution or
sale of assets, or by any other voluntary act) the
observance or performance of any of the covenants,
agreements or conditions to be observed or performed
hereunder by Issuer; and
(c) Further Assurances. Promptly after the date
hereof to take all actions as may from time to time be
required (including (i) complying with all applicable
premerger notification, reporting and waiting period
requirements under the HSR Act and (ii) in the event that
prior notification to or approval of any other regulatory
authority in the U.S., U.K. or elsewhere is necessary before
the Option may be exercised, cooperating fully with Grantee
in preparing and processing the required notices or
applications) in order to permit Grantee to exercise the
Option and purchase Option Shares pursuant to such exercise
and to take all action necessary to protect the rights of
Grantee against dilution.
4. Representations and Warranties of Issuer.
Issuer hereby represents and warrants to Grantee as follows:
(a) Merger Agreement. Issuer hereby makes each of the
representations and warranties contained in Sections
2.1.2.1, 2.1.3.1, and 2.1.4 of the Merger Agreement as they
relate to Issuer and this Agreement, as if such
representations were set forth herein.
(b) Shares Reserved for Issuance; Capital Stock. The
Option Shares issuable in accordance with the terms of this
Agreement have been duly reserved for issuance by Issuer and
upon any issuance of such shares in accordance with the
terms hereof, such Option Shares will be duly authorized,
validly issued, fully paid and nonassessable, and will be
delivered free and clear of any lien, pledge, security
interest, claim or other encumbrance (other than those
created by this Agreement) and not subject to any preemptive
rights.
5. Representations and Warranties of Grantee.
Grantee hereby represents and warrants to Issuer that
Grantee has all requisite corporate power and authority and
has taken all corporate action necessary in order to
execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated
hereby; the execution and delivery of this Agreement have
been duly authorized by all necessary corporate action on
the part of Grantee, and, assuming the due authorization,
execution and delivery of this Agreement by Issuer,
constitutes a valid and binding agreement of Grantee
enforceable against Grantee in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles.
6. Replacement. Upon (i)receipt by Issuer of
evidence reasonably satisfactory to it of the loss, theft,
destruction, or mutilation of this Agreement, (ii)receipt by
Issuer of reasonably satisfactory indemnification in the
case of loss, theft or destruction and (iii)surrender and
cancellation of this Agreement in the case of mutilation,
Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new Agreement executed and
delivered shall constitute an additional contractual
obligation on the part of Issuer, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at
any time be enforceable by any person other than the holder
of the new Agreement.
7. Adjustments. In addition to the adjustment to
the total number of Option Shares pursuant to Section1(b)
and the adjustment to the Option Price pursuant to Section
1(c), the total number of Option Shares purchasable upon the
exercise of the Option hereof and the Option Price shall be
subject to adjustment from time to time as follows:
(a) In the event of any change in the outstanding
shares of Common Stock by reason of stock dividends, split-
ups, mergers, recapitalizations, combinations, subdivisions,
conversions, extraordinary dividends or distributions,
exchanges of shares or the like, the type and number of
Option Shares purchasable upon exercise of the Option shall
be appropriately adjusted, and proper provision shall be
made in the agreements governing any such transaction, so
that (i) Grantee shall receive upon exercise of the Option
the number and class of shares, other securities, property
or cash that Grantee would have received in respect of the
Option Shares purchasable upon exercise of the Option if the
Option had been exercised and such Option Shares had been
issued to Grantee immediately prior to such event or the
record date therefor, as applicable; and (ii) in the event
any additional shares of Common Stock are to be issued or
otherwise become outstanding as a result of any such change
(other than pursuant to an exercise of the Option), the
number of Option Shares purchasable upon exercise of the
Option shall be increased so that, after such issuance the
number of Option Shares so purchasable equals the Maximum
Applicable Percentage of the number of shares of Common
Stock issued and outstanding immediately after the
consummation of such change; and
(b) Whenever the number of Option Shares purchasable
upon exercise hereof is adjusted as provided in this
Section7, the Option Price shall be adjusted by multiplying
the Option Price by a fraction, the numerator of which is
equal to the number of Option Shares purchasable prior to
the adjustment and the denominator of which is equal to the
number of Option Shares purchasable after the adjustment.
8. Registration. (a) Upon the occurrence of a
Triggering Event, Issuer shall, at the request of Grantee
included in the Exercise Notice, as promptly as practicable
prepare, file and keep current a shelf registration
statement under the Securities Act covering all Option
Shares issued and issuable pursuant to the Option and shall
use its best efforts to cause such registration statement to
become effective and remain current in order to permit the
sale or other disposition of any Option Shares issued upon
exercise of the Option in accordance with any plan of
disposition requested by Grantee; provided, however, that
Issuer may postpone filing a registration statement relating
to a registration request by Grantee under this Section8 for
a period of time (not in excess of 30 days) if in its
judgment such filing would require the disclosure of
material information that Issuer has a bona fide business
purpose for preserving as confidential. Issuer will use its
best efforts to cause such registration statement first to
become effective and then to remain effective for 270 days
from the day such registration statement first becomes
effective or until such earlier date as all shares
registered shall have been sold by Grantee. In connection
with any such registration, Issuer and Grantee shall provide
each other with representations, warranties, indemnities,
contribution and other agreements customarily given in
connection with such registrations. If requested by Grantee
in connection with such registration, Issuer shall become a
party to any underwriting agreement relating to the sale of
such shares, but only to the extent of obligating Issuer in
respect of representations, warranties, indemnities,
contribution and other agreements customarily made by
issuers in such underwriting agreements.
(b) In the event that Grantee so requests, the
closing of the sale or other disposition of the Option
Shares or other securities pursuant to a registration
statement filed pursuant to Section8(a) shall occur
substantially simultaneously with the exercise of the
Option.
9. Repurchase of Option and/or Shares.
(a)Repurchase; Repurchase Price. Following the occurrence
of a Triggering Event, (i)at the request of Grantee, given
in writing within 180 days of such occurrence (or such later
period as provided in Section2(d) with respect to any
required notification, application or approval or in
Section10), Issuer shall repurchase the Option from Grantee,
in whole but not in part, at a price (the "Option Repurchase
Price") equal to the number of Option Shares then
purchasable upon exercise of the Option multiplied by the
amount by which the market/offer price (as defined below)
exceeds the applicable Option Price (giving effect to the
Maximum Option Price) and (ii)at the request of Grantee,
given in writing within 180days of such occurrence (or such
later period as provided in Section2(d) with respect to any
required notification, application or approval or in
Section10), Issuer shall repurchase all Option Shares then
owned by Grantee at a price (the "Option Share Repurchase
Price") equal to the number of such Option Shares multiplied
by the market/offer price. The term "market/offer price"
shall mean the highest of (x)the price per share of Common
Stock at which a tender or exchange offer for Common Stock
has been made, (y)the price per share of Common Stock to be
paid by any third party pursuant to an agreement with Issuer
and (z)the highest trading price for shares of Common Stock
on the NYSE (or, if the Common Stock is not then listed on
the NYSE, any other national securities exchange or
automated quotation system on which the Common Stock is then
listed or quoted) within the six-month period immediately
preceding the delivery of the Repurchase Notice. In the
event that a tender or exchange offer is made for the Common
Stock or an agreement is entered into for a merger, share
exchange, consolidation, recapitalization, reorganization or
similar transaction involving consideration other than cash,
the value of the securities or other property issuable or
deliverable in exchange for the Common Stock shall (I) if
such consideration is in securities and such securities are
listed on a national securities exchange, be determined to
be the highest trading price for such securities on such
national securities exchange within the six-month period
immediately preceding the delivery of the Repurchase Notice
or (II) if such consideration is not securities, or if in
securities and such securities are not traded on a national
securities exchange, be determined in good faith by a
nationally recognized investment banking firm selected by
Issuer.
(b) Method of Repurchase. Grantee may exercise
its right to require Issuer to repurchase the Option, in
whole but not in part, or all Option Shares then owned by
Grantee pursuant to this Section9 by surrendering for such
purpose to Issuer, at its principal office, this Agreement
or certificates for such Option Shares, as applicable,
accompanied by a written notice or notices stating that
Grantee elects to require Issuer to repurchase the Option or
such Option Shares in accordance with the provisions of this
Section9 (such notice, a "Repurchase Notice"). As promptly
as practicable, and in any event within 2 business days
after the surrender of this Agreement or certificates
representing Option Shares and the receipt of the Repurchase
Notice relating thereto, Issuer shall deliver or cause to be
delivered to Grantee the applicable Option Repurchase Price
or the Option Share Repurchase Price.
(c) Effect of Statutory or Regulatory Restraints
on Repurchase. To the extent that, upon or following the
giving of a Repurchase Notice, Issuer is prohibited under
applicable law or regulation from repurchasing the Option or
any Option Shares subject to such Repurchase Notice (and
Issuer hereby undertakes to use its reasonable best efforts
to obtain all required regulatory and legal approvals and to
file any required notices as promptly as practicable in
order to accomplish such repurchase), Issuer shall
immediately so notify Grantee in writing and thereafter
deliver or cause to be delivered, from time to time, to
Grantee the portion of the Option Repurchase Price or the
Option Share Repurchase Price that Issuer is no longer
prohibited from delivering, within 2 business days after the
date on which it is no longer so prohibited; provided,
however, that upon notification by Issuer in writing of such
prohibition, Grantee may, within 5 days of receipt of such
notification from Issuer, revoke in writing its Repurchase
Notice, whether in whole or to the extent of the
prohibition, whereupon, in the latter case, Issuer shall
promptly (i) deliver to Grantee that portion of the Option
Repurchase Price or the Option Share Repurchase Price that
Issuer is not prohibited from delivering; and (ii) deliver
to Grantee, as appropriate, (A) with respect to the Option,
a new stock option agreement evidencing the right of Grantee
to purchase that number of Option Shares for which the
surrendered stock option agreement was exercisable at the
time of delivery of the Repurchase Notice less the number of
shares as to which the Option Repurchase Price has
theretofore been delivered to Grantee, or (B) with respect
to Option Shares, a certificate for the Option Shares as to
which the Option Share Repurchase Price has not theretofore
been delivered to Grantee. Notwithstanding anything to the
contrary in this Agreement, including, without limitation,
the time limitations on the exercise of the Option, Grantee
may give notice of exercise of the Option for 180days after
a notice of revocation has been issued pursuant to this
Section 9(c) and thereafter exercise the Option in
accordance with the applicable provisions of this Agreement.
(d) Acquisition Transactions. In addition to any
other restrictions or covenants, Issuer hereby agrees that,
in the event that Grantee delivers a Repurchase Notice, it
shall not enter or agree to enter into an agreement or
series of agreements relating to a merger with or into or
the consolidation with any other person or entity, the sale
of all or substantially all of the assets of Issuer or any
similar transaction or disposition unless the other party or
parties to such agreement or agreements agree to assume in
writing Issuer's obligations under Section 9(a) and,
notwithstanding any notice of revocation delivered pursuant
to the proviso to Section9(c), Grantee may require such
other party or parties to perform Issuer's obligations under
Section 9(a) unless such party or parties are prohibited by
law or regulation from such performance, in which case such
party or parties shall be subject to the obligations of the
Issuer under Section9(c).
10. Extension of Exercise Periods. The 180-day
periods for exercise of certain rights under Sections 2 and
9 shall be extended in each such case at the request of
Grantee to the extent necessary to avoid liability by
Grantee under Section 16(b) of the Exchange Act by reason of
such exercise.
11. Assignment. Neither party hereto may assign
or delegate any of its rights or obligations under this
Agreement or the Option to any other person without the
express written consent of the other party, except that this
Agreement or the Option may be assigned to any direct or
indirect wholly owned Subsidiary of Grantee. Any attempted
assignment or delegation in contravention of the preceding
sentence shall be null and void.
12. Filings; Other Actions. Each of Grantee and
Issuer will use its best efforts to make all filings with,
and to obtain consents of, all third parties and
governmental authorities necessary for the consummation of
the transactions contemplated by this Agreement.
13. Specific Performance. The parties hereto
acknowledge that damages would be an inadequate remedy for a
breach of this Agreement by either party hereto and that the
obligations of the parties hereto shall be specifically
enforceable through injunctive or other equitable relief.
14. Severability; Etc. If any term, provision,
covenant, or restriction contained in this Agreement is held
by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions,
covenants, and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way
be affected, impaired, or invalidated. If for any reason
such court or regulatory agency determines that Grantee is
not permitted to acquire pursuant to Section 2, or Issuer is
not permitted to repurchase pursuant to Section9, the full
number of Option Shares provided in Section 1(a) hereof (as
adjusted pursuant to Sections 1(b) and 7 hereof), it is the
express intention of Issuer to allow Grantee to acquire such
lesser number of shares as may be permissible, without any
amendment or modification hereof.
15. Notices. Notices, requests, instructions or
other documents to be given under this Agreement shall be in
writing and shall be deemed given (i)when sent if sent by
facsimile, provided that the facsimile is promptly confirmed
by telephone confirmation thereof, (ii)when delivered, if
delivered personally to the intended recipient, and (iii)one
business day later, if sent by overnight delivery via a
national courier service, and in each case addressed to a
party at the respective addresses of the parties set forth
in the Merger Agreement.
16. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS TO BE PERFORMED WHOLLY IN SUCH
STATE. The parties hereby irrevocably submit to the
jurisdiction of the Federal courts of the United States of
America located in the Borough of Manhattan, New York State
solely in respect of the interpretation and enforcement of
the provisions of this Agreement and in respect of the
transactions contemplated hereby and thereby and hereby
waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement
hereof, that it is not subject thereto or that such action,
suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be
appropriate or that this Agreement may not be enforced in or
by such courts, and the parties irrevocably agree that all
claims with respect to such action or proceeding shall be
heard and determined in such a Federal court. The parties
hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of
such dispute and agree that mailing of process or other
papers in connection with any such action or proceeding in
the manner provided in Section15, or in such other manner as
may be permitted by Law, shall be valid and sufficient
service thereof. EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i)NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF THIS WAIVER, (iii)EACH SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (iv)EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS XXXXXXX00.
17. Expenses. Except as otherwise expressly
provided herein or in the Merger Agreement, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated by this Agreement shall be paid by
the party incurring such expense, except that Issuer shall
be responsible for all fees and expenses (other than
underwriting discounts or commissions) relating to the
registration of securities pursuant to Section 8.
18. Entire Agreement, Etc. This Agreement, the
Confidentiality Agreement (as such term is defined in the
Merger Agreement) and the Merger Agreement (including any
exhibits thereto, the Amoco Disclosure Letter and the BP
Disclosure Letter) constitute the entire agreement, and
supersede all other prior agreements, understandings,
representations and warranties, both written and oral,
between the parties, with respect to the subject matter
hereof. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective
successors and permitted assigns. This Agreement is not
intended to confer upon any person or entity, other than the
parties hereto, and their respective successors and
permitted assigns, any rights or remedies hereunder.
19. Limitation on Profit. (a) Notwithstanding
any other provision of this Agreement, in no event shall
Grantee's Total Profit (as hereinafter defined) plus any
Amoco Termination Amount (or part thereof) paid to Grantee
pursuant to Section5.5.2 of the Merger Agreement exceed in
the aggregate $1billion (the "Maximum Amount") and, if it
otherwise would exceed such amount, Grantee, at its sole
election, shall either (i) reduce the number of Option
Shares subject to this Option, (ii) deliver to the Issuer
for cancellation Option Shares previously purchased by
Grantee, (iii) pay cash to the Issuer, or (iv)any
combination thereof, so that Grantee's actually realized
Total Profit, when aggregated with such Amoco Termination
Amount (or part thereof) so paid to Grantee shall not exceed
the Maximum Amount taking into account the foregoing
actions.
(b) Notwithstanding any other provision of this
Agreement, this Option may not be exercised for a number of
Option Shares as would, as of the date of exercise, result
in a Notional Total Profit (as defined below) which,
together with any Amoco Termination Amount (or part thereof)
theretofore paid to Grantee, would exceed the Maximum
Amount; provided, that nothing in this sentence shall
restrict any exercise of the Option permitted hereby on any
subsequent date.
(c) As used herein, the term "Total Profit" shall
mean the aggregate amount (before taxes) of the following:
(i) (x) the amount received by Grantee pursuant to Issuer's
repurchase of the Option or any Option Shares pursuant to
Section 9, less, in the case of any repurchase of Option
Shares, (y) Grantee's purchase price for such Option Shares,
as the case may be, and (ii) (x) the net cash amounts or the
fair market value of any property received by Grantee
pursuant to the sale of Option Shares (or any other
securities into which such Option Shares are converted or
exchanged), but in no case less than the fair market value
of such Option Shares, less (y) Grantee's purchase price for
such Option Shares.
(d) As used herein, the term "Notional Total
Profit" with respect to the Option Shares as to which
Grantee may propose to exercise this Option shall be the
Total Profit determined as of the date of such proposal
assuming that this Option were exercised on such date for
such number of Option Shares and assuming that such Option
Shares were sold for cash at the closing market price on the
NYSE for the Common Stock as of the close of business on the
preceding trading day (less customary brokerage
commissions).
20. Captions. The Section and paragraph captions
herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof.
IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered by duly authorized officers of the
parties hereto as of the day and year first hereinabove
written.
AMOCO CORPORATION
By: /s/ H. Xxxxxxxx Xxxxxx
Name: H. Xxxxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
THE BRITISH PETROLEUM COMPANY p.l.c.
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
