Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF OCTOBER 14, 1998
BETWEEN
XXXX-XxXXX CORPORATION
AND
ORYX ENERGY COMPANY
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER . . . . . . . . . . . . . . 9
1.1 The Merger . . . . . . . . . . . . . . . . . . 9
1.2 Closing . . . . . . . . . . . . . . . . . . . . 9
1.3 Effective Time . . . . . . . . . . . . . . . . 9
1.4 Effects of the Merger . . . . . . . . . . . . . 10
1.5 Certificate of Incorporation . . . . . . . . . 10
1.6 By-Laws . . . . . . . . . . . . . . . . . . . . 10
1.7 Officers and Directors of Surviving
Corporation . . . . . . . . . . . . . . . . . . 10
1.8 Reverse Stock Split . . . . . . . . . . . . . . 11
1.9 Effect of Merger on Capital Stock . . . . . . . 11
1.10 Stock Options . . . . . . . . . . . . . . . . . 11
1.11 Certain Adjustments . . . . . . . . . . . . . . 12
ARTICLE II
EXCHANGE OF CERTIFICATES . . . . . . . . . . 13
2.1 Exchange Fund . . . . . . . . . . . . . . . . . 13
2.2 Exchange and Distribution Procedures . . . . . 13
2.3 Distributions with Respect to Unexchanged
Shares . . . . . . . . . . . . . . . . . . . . 14
2.4 No Further Ownership Rights in Oryx Common
Stock . . . . . . . . . . . . . . . . . . . . . 14
2.5 No Fractional Shares . . . . . . . . . . . . . 14
2.6 Termination of Exchange Fund . . . . . . . . . 15
2.7 No Liability . . . . . . . . . . . . . . . . . 15
2.8 Investment of the Exchange Fund . . . . . . . . 15
2.9 Lost Certificates . . . . . . . . . . . . . . . 15
2.10 Withholding Rights . . . . . . . . . . . . . . 16
2.11 Further Assurances . . . . . . . . . . . . . . 16
2.12 Stock Transfer Books . . . . . . . . . . . . . 16
2.13 Affiliates . . . . . . . . . . . . . . . . . . 16
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . 17
3.1 Representations and Warranties of Xxxx-
XxXxx. . . . . . . . . . . . . . . . . . . . . 17
(a) Organization, Standing and Power;
Subsidiaries . . . . . . . . . . . . . 17
(b) Capital Structure . . . . . . . . . . . 18
(c) Authority; No Conflicts . . . . . . . . 19
(d) Reports and Financial Statements . . . 20
i
(e) Information Supplied . . . . . . . . . 21
(f) Board Approval . . . . . . . . . . . . 22
(g) Vote Required . . . . . . . . . . . . . 22
(h) Litigation; Compliance with Laws . . . 22
(i) Absence of Certain Changes or
Events . . . . . . . . . . . . . . . . 23
(j) Environmental Matters . . . . . . . . . 23
(k) Intellectual Property . . . . . . . . . 24
(l) Rights Agreement . . . . . . . . . . . 25
(m) Brokers or Finders . . . . . . . . . . 25
(n) Opinion of Xxxx-XxXxx Financial
Advisor . . . . . . . . . . . . . . . . 26
(o) Accounting Matters . . . . . . . . . . 26
(p) Taxes . . . . . . . . . . . . . . . . . 26
(q) Certain Contracts . . . . . . . . . . . 26
(r) Employee Benefits . . . . . . . . . . . 27
(s) Labor Matters . . . . . . . . . . . . . 28
(t) Ownership of Oryx Common Stock . . . . 28
3.2 Representations and Warranties of Oryx. . . . 28
(a) Organization, Standing and Power;
Subsidiaries . . . . . . . . . . . . . 28
(b) Capital Structure . . . . . . . . . . . 29
(c) Authority; No Conflicts . . . . . . . . 31
(d) Reports and Financial Statements . . . 32
(e) Information Supplied . . . . . . . . . 32
(f) Board Approval . . . . . . . . . . . . 33
(g) Vote Required . . . . . . . . . . . . . 33
(h) Litigation; Compliance with Laws . . . 34
(i) Absence of Certain Changes or
Events . . . . . . . . . . . . . . . . 34
(j) Environmental Matters . . . . . . . . . 34
(k) Intellectual Property . . . . . . . . . 35
(l) Rights Agreement . . . . . . . . . . . 35
(m) Brokers or Finders . . . . . . . . . . 35
(n) Opinion of Oryx Financial Advisor . . . 36
(o) Accounting Matters . . . . . . . . . . 36
(p) Taxes . . . . . . . . . . . . . . . . . 36
(q) Certain Contracts . . . . . . . . . . . 36
(r) Employee Benefits . . . . . . . . . . . 36
(s) Labor Matters . . . . . . . . . . . . . 37
(t) Ownership of Xxxx-XxXxx Common
Stock . . . . . . . . . . . . . . . . . 38
(u) Devon Stock . . . . . . . . . . . . . . 38
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS . . . . . . 38
4.1 Covenants of Xxxx-XxXxx. . . . . . . . . . . 38
(a) Ordinary Course . . . . . . . . . . . . 38
ii
(b) Dividends; Changes in Capital Stock . . 39
(c) Issuance of Securities . . . . . . . . 39
(d) Governing Documents . . . . . . . . . . 39
(e) No Acquisitions . . . . . . . . . . . . 40
(f) No Dispositions . . . . . . . . . . . . 40
(g) Investments; Indebtedness . . . . . . . 40
(h) Pooling; Tax-Free Qualification . . . . 41
(i) Compensation . . . . . . . . . . . . . 41
(j) Accounting Methods; Income Tax
Elections . . . . . . . . . . . . . . . 41
(k) Certain Agreements . . . . . . . . . . 41
(l) Rights Agreement . . . . . . . . . . . 41
4.2 Covenants of Oryx . . . . . . . . . . . . . . . 42
(a) Ordinary Course . . . . . . . . . . . . 42
(b) Dividends; Changes in Capital Stock . . 42
(c) Issuance of Securities . . . . . . . . 43
(d) Governing Documents . . . . . . . . . . 43
(e) No Acquisitions . . . . . . . . . . . . 43
(f) No Dispositions . . . . . . . . . . . . 43
(g) Investments; Indebtedness . . . . . . . 43
(h) Pooling; Tax-Free Qualification . . . . 44
(i) Compensation . . . . . . . . . . . . . 44
(j) Accounting Methods; Income Tax
Elections . . . . . . . . . . . . . . . 44
(k) Certain Agreements . . . . . . . . . . 44
(l) Rights Agreement . . . . . . . . . . . 45
4.3 Governmental Filings . . . . . . . . . . . . . 45
4.4 Control of Other Party's Business . . . . . . . 45
ARTICLE V
ADDITIONAL AGREEMENTS . . . . . . . . . . . 45
5.1 Preparation of Proxy Statement; Stockholders
Meetings . . . . . . . . . . . . . . . . . . . 45
5.2 Access to Information . . . . . . . . . . . . . 48
5.3 Reasonable Best Efforts . . . . . . . . . . . . 49
5.4 Acquisition Proposals . . . . . . . . . . . . . 51
5.5 Employee Benefits Matters . . . . . . . . . . . 52
5.6 Fees and Expenses . . . . . . . . . . . . . . . 55
5.7 Directors' and Officers' Indemnification and
Insurance . . . . . . . . . . . . . . . . . . . 55
5.8 Public Announcements . . . . . . . . . . . . . 56
5.9 Accountant's Letters . . . . . . . . . . . . . 56
5.10 Listing of Shares of Company Common Stock . . . 57
5.11 Affiliates . . . . . . . . . . . . . . . . . . 57
5.12 Oryx Partnership Name . . . . . . . . . . . . . 58
5.13 Reverse Stock Split . . . . . . . . . . . . . . 58
5.14 Transition Management . . . . . . . . . . . . . 58
iii
ARTICLE VI
CONDITIONS PRECEDENT . . . . . . . . . . . 59
6.1 Conditions to Each Party's Obligation to
Effect the Merger . . . . . . . . . . . . . . . 59
(a) Stockholder Approval . . . . . . . . . 59
(b) No Injunctions or Restraints,
Illegality . . . . . . . . . . . . . . 59
(c) HSR Act . . . . . . . . . . . . . . . . 59
(d) Governmental and Regulatory
Approvals . . . . . . . . . . . . . . . 59
(e) NYSE Listing . . . . . . . . . . . . . 60
(f) Effectiveness of the Form S-4 . . . . . 60
(g) Pooling . . . . . . . . . . . . . . . . 60
(h) Reverse Split . . . . . . . . . . . . . 60
6.2 Additional Conditions to Obligations of
Xxxx-XxXxx . . . . . . . . . . . . . . . . . . 60
(a) Representations and Warranties . . . . 61
(b) Performance of Obligations of Oryx.
. . . . . . . . . . . . . . . . . . . 61
(c) Tax Opinion . . . . . . . . . . . . . . 61
(d) Rights Agreement . . . . . . . . . . . 61
6.3 Additional Conditions to Obligations of
Oryx. . . . . . . . . . . . . . . . . . . . . 61
(a) Representations and Warranties . . . . 61
(b) Performance of Obligations of Xxxx-
XxXxx. . . . . . . . . . . . . . . . 62
(c) Tax Opinion . . . . . . . . . . . . . . 62
(d) Rights Agreement . . . . . . . . . . . 62
ARTICLE VII
TERMINATION AND AMENDMENT . . . . . . . . . . 62
7.1 Termination . . . . . . . . . . . . . . . . . . 62
7.2 Effect of Termination . . . . . . . . . . . . . 64
7.3 Amendment . . . . . . . . . . . . . . . . . . . 66
7.4 Extension; Waiver . . . . . . . . . . . . . . . 66
ARTICLE VIII
GENERAL PROVISIONS . . . . . . . . . . . . 66
8.1 Non-Survival of Representations, Warranties
and Agreements . . . . . . . . . . . . . . . . 66
8.2 Notices . . . . . . . . . . . . . . . . . . . . 66
8.3 Interpretation . . . . . . . . . . . . . . . . 67
8.4 Counterparts . . . . . . . . . . . . . . . . . 67
8.5 Entire Agreement; No Third Party
Beneficiaries . . . . . . . . . . . . . . . . . 68
8.6 GOVERNING LAW . . . . . . . . . . . . . . . . . 68
iv
8.7 Severability . . . . . . . . . . . . . . . . . 68
8.8 Assignment . . . . . . . . . . . . . . . . . . 68
8.9 Submission to Jurisdiction; Waivers . . . . . . 69
8.10 Enforcement . . . . . . . . . . . . . . . . . . 69
8.11 Definitions . . . . . . . . . . . . . . . . . . 69
v
LIST OF EXHIBITS
Exhibit Title
1.5 Form of Amended and Restated Certificate of
Incorporation of Surviving Corporation
1.6 Form of By-Laws of Surviving Corporation
1.7 Directors of Surviving Corporation
5.5(e) Actions with respect to Certain Benefit Plans
5.11 Form of Affiliate Letter
vi
AGREEMENT AND PLAN OF MERGER, dated as of October
14, 1998 (this "Agreement"), between XXXX-XxXXX CORPORATION, a Delaware
corporation ("Xxxx-XxXxx"), and ORYX ENERGY COMPANY, a Delaware corporation
("Oryx").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Oryx and Xxxx-
XxXxx deem it advisable and in the best interests of each corporation and its
respective stockholders that Oryx and Xxxx-XxXxx engage in a business
combination as peer firms in a merger of equals in order to advance the long-
term strategic business interests of Oryx and Xxxx-XxXxx;
WHEREAS, the combination of Oryx and Xxxx-XxXxx
shall be effected by the terms of this Agreement through a merger as outlined
below (the "Merger");
WHEREAS, immediately prior to the Effective Time (as
defined in Section 1.3), Oryx shall effect a reverse stock split (the
"Reverse Split") of its common stock, par value $1.00 per share ("Oryx Common
Stock"), as set forth in Section 1.8;
WHEREAS, the respective Boards of Directors of Oryx
and Xxxx-XxXxx have approved the Merger, upon the terms and subject to the
conditions set forth in this Agreement, pursuant to which each share of Oryx
Common Stock issued and outstanding after giving effect to the Reverse Split
and immediately prior to the Effective Time, other than shares owned or held
by Xxxx-XxXxx or Oryx, will be converted into the right to receive one share
of common stock, par value $1.00 per share, of the Surviving Corporation (as
defined in Section 1.1) ("Company Common Stock") as set forth in Section 1.9,
and each share of common stock, par value $1.00 per share, of Xxxx-XxXxx
("Xxxx-XxXxx Common Stock") issued and outstanding immediately prior to the
Effective Time shall remain issued and outstanding as one share of Company
Common Stock;
WHEREAS, for federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations promulgated thereunder;
WHEREAS, for accounting purposes, it is intended
that the Merger shall be accounted for as a pooling of interests transaction
under United States generally accepted accounting principles ("GAAP"); and
WHEREAS, concurrently with the execution and
delivery of this Agreement and as a condition of each party's willingness to
enter into this Agreement, Oryx and Xxxx-XxXxx are entering into stock option
agreements, dated as of the date hereof (the "Stock Option Agreements"),
pursuant to which, among other things, Oryx is granting Xxxx-XxXxx an option
to purchase shares of Oryx Common Stock (the "Oryx Stock Option Agreement")
and Xxxx-XxXxx is granting Oryx an option to purchase shares of Xxxx-XxXxx
Common Stock (the "Xxxx-XxXxx Stock Option Agreement").
NOW, THEREFORE, in consideration of the foregoing
and the respective representations, warranties, covenants and agreements set
forth in this Agreement and the Stock Option Agreements, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to
the conditions set forth in this Agreement, and in accordance with the
Delaware General Corporation Law (the "DGCL"), Oryx shall be merged with and
into Xxxx-XxXxx at the Effective Time. Following the Merger, the separate
corporate existence of Oryx shall cease and Xxxx-XxXxx shall continue as the
surviving corporation (the "Surviving Corporation").
1.2 Closing. Subject to the terms and
conditions hereof, the closing of the Merger and the transactions
contemplated by this Agreement (the "Closing") will take place on the second
Business Day after the satisfaction or waiver (subject to applicable law) of
the conditions set forth in Article VI (other than any such conditions which
by their terms cannot be satisfied until the Closing Date, which shall be
required to be so satisfied or waived on the Closing Date), unless another
time or date is agreed to in writing by the parties hereto (the actual time
and date of the Closing being referred to herein as the "Closing Date"). The
Closing shall be held at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless another place is agreed to
in writing by the parties hereto.
1.3 Effective Time. At the Closing, the parties
shall (i) file a certificate of merger (the "Certificate of Merger") in such
form as is required by and executed in accordance with the relevant
provisions of the DGCL and (ii) make all other filings or recordings required
under the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Delaware Secretary of State or
at such subsequent time as Xxxx-XxXxx and Oryx shall agree and as shall be
specified in the Certificate of Merger (the date and time the Merger becomes
effective being the "Effective Time").
1.4 Effects of the Merger. At and after the
Effective Time, the Merger will have the effects set forth in the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
Oryx and Xxxx-XxXxx shall be vested in the Surviving Corporation, and all
debts, liabilities and duties of Oryx and Xxxx-XxXxx shall become the debts,
liabilities and duties of the Surviving Corporation.
1.5 Certificate of Incorporation. The
certificate of incorporation of Xxxx-XxXxx, as in effect immediately prior to
the Effective Time, shall be amended and restated as of the Effective Time so
as to read in its entirety in the form set forth as Exhibit 1.5 and, as so
amended and restated, shall be the certificate of incorporation of the
Surviving Corporation, until thereafter changed or amended as provided
therein or by applicable law.
1.6 By-Laws. At the Effective Time, the by-laws
in the form attached as Exhibit 1.6 shall be the amended and restated by-laws
of the Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law.
1.7 Officers and Directors of Surviving
Corporation. The officers of Xxxx-XxXxx as of the Effective Time shall be
the officers of the Surviving Corporation, until the earlier of their
resignation or removal or otherwise ceasing to be an officer or until their
respective successors are duly elected and qualified, as the case may be.
The directors of Xxxx-XxXxx as of the Effective Time shall be the directors
of the Surviving Corporation for the initial terms set forth on Exhibit 1.7
hereto, until the earlier of their resignation or removal or otherwise
ceasing to be a director or until their respective successors are duly
elected and qualified. The Surviving Corporation will take all action
necessary to (i) add to the Board of Directors of the Surviving Corporation,
effective the day following the Effective Time, Xxxxxx X. Xxxxxx and the four
other persons indicated on Exhibit 1.7 hereto who are not and have not been
employees of Oryx or its Subsidiaries and who are serving on the Oryx Board
of Directors immediately prior to the Effective Time (or, if Xx. Xxxxxx or
any such person listed on Exhibit 1.7 hereto shall not be so serving on the
Oryx Board of Directors immediately prior to the Effective Time or shall
otherwise be unable to serve on the Board of Directors of the Surviving
Corporation, Oryx shall be entitled to designate a substitute nominee from
among the Oryx serving directors as of the date hereof, provided that such
substitute nominee is not and has not been an employee of Oryx or its
Subsidiaries and is serving on the Oryx Board of Directors immediately prior
to the Effective Time), in each case for the initial terms set forth on
Exhibit 1.7 hereto, and (ii) cause to be appointed promptly following the
Effective Time: Xxxx X. Xxxxxxx as Chief Executive Officer of the Surviving
Corporation and Xxxxxx X. Xxxxxx as Chairman of the Surviving Corporation.
1.8 Reverse Stock Split. Immediately prior to
the Effective Time, Oryx shall effect the Reverse Split, pursuant to which
each share of Oryx Common Stock issued and outstanding immediately prior to
the Reverse Split shall, by virtue of the Reverse Split and without any
action on the part of the holder thereof, become 0.369 shares (the "Exchange
Ratio") of Oryx Common Stock, subject to Section 2.5.
1.9 Effect of Merger on Capital Stock.
(a) At the Effective Time by virtue of the
Merger and without any action on the part of the holder thereof, each share
of Oryx Common Stock issued and outstanding after giving effect to the
Reverse Split and immediately prior to the Effective Time (other than shares
of Oryx Common Stock owned by Xxxx-XxXxx or held by Oryx, all of which shall
be canceled as provided in Section 1.9(c)) shall be converted into the right
to receive one share of Company Common Stock (together with any cash in lieu
of fractional shares to be paid pursuant to Section 2.5, the "Merger
Consideration").
(b) At the Effective Time by virtue of the
Merger and without any action on the part of the holder thereof, each share
of Xxxx-XxXxx Common Stock issued and outstanding immediately prior to the
Effective Time shall remain outstanding as one share of Company Common Stock.
(c) At the Effective Time by virtue of the
Merger and without any action on the part of the holder thereof, each share
of Oryx Common Stock issued and owned or held by Xxxx-XxXxx or Oryx at the
Effective Time shall cease to be outstanding and shall be canceled and
retired and no stock of the Surviving Corporation or other consideration
shall be delivered in exchange therefor.
1.10 Stock Options.
(a) On or prior to the Reverse Split, Oryx will
take all action necessary such that each Oryx Stock Option (as defined in
Section 3.2(b)) that was granted pursuant to the Oryx Stock Option Plans (as
defined in Section 3.2(b)) prior to the Reverse Split and which remains
outstanding immediately prior to the Effective Time shall cease to represent
a right to acquire shares of Oryx Common Stock and shall be converted, at the
Effective Time, into an option to acquire, on the same terms and conditions
as were applicable under the Oryx Stock Option, that number of shares of
Company Common Stock determined by multiplying the number of shares of Oryx
Common Stock subject to such Oryx Stock Option by the Exchange Ratio,
rounded, if necessary, to the nearest whole share of Company Common Stock, at
a price per share (rounded to the nearest one-hundredth of a cent) equal to
the per share exercise price specified in such Oryx Stock Option divided by
the Exchange Ratio; provided, however, that in the case of any Oryx Stock
Option to which Section 421 of the Code applies by reason of its
qualification under Section 422 of the Code, the option price, the number of
shares subject to such option and the terms and conditions of exercise of
such option shall be determined in a manner consistent with the requirements
of Section 424(a) of the Code. On or prior to the Reverse Split, Oryx will
amend the Oryx Stock Options and the Oryx Stock Option Plans to give effect
to this Section 1.10 and Section 5.5 and to make such changes in phraseology
and form to give effect to the Reverse Split and the Merger and to the
substitution of the Surviving Corporation for Oryx and Company Common Stock
for Oryx Common Stock.
(b) As soon as practicable after the Effective
Time, the Surviving Corporation shall deliver to the holders of Oryx Stock
Options appropriate notices setting forth such holders' rights pursuant to
the Oryx Stock Option Plans (including, as applicable, that, by virtue of the
Merger and pursuant to the terms of the Oryx Stock Option Plans, the Oryx
Stock Options have become fully vested and exercisable) and the agreements
evidencing the grants of such Oryx Stock Options shall continue in effect on
the same terms and conditions (subject to the adjustments required by this
Section 1.10 after giving effect to the Reverse Split and the Merger and the
terms of the Oryx Stock Option Plans). To the extent permitted by law, the
Surviving Corporation shall comply with the terms of the Oryx Stock Option
Plans and shall take such reasonable steps as are necessary or required by,
and subject to the provisions of, such Oryx Stock Option Plans, to have the
Oryx Stock Options which qualified as incentive stock options prior to the
Effective Time continue to qualify as incentive stock options of the
Surviving Corporation after the Effective Time.
(c) The Surviving Corporation shall take all
corporate action necessary to reserve for issuance a sufficient number of
shares of Company Common Stock for delivery upon exercise of Oryx Stock
Options in accordance with this Section 1.10. Promptly after the Effective
Time, the Surviving Corporation shall file a registration statement on Form
S-3 or Form S-8, as the case may be (or any successor or other appropriate
forms), with respect to the shares of Company Common Stock subject to such
options and shall use commercially reasonable efforts to maintain the
effectiveness of such registration statement or registration statements (and
maintain the current status of the prospectus or prospectuses contained
therein) for so long as such options remain outstanding.
1.11 Certain Adjustments. If, between the date
of this Agreement and the Effective Time, the outstanding Xxxx-XxXxx Common
Stock or Oryx Common Stock shall have been changed into a different number of
shares or different class of stock by reason of any reclassification,
recapitalization, stock split, split-up, combination or exchange of shares,
or a stock dividend or dividend payable in any other securities shall be
declared with a record date within such period, or any similar event shall
have occurred (in all cases, other than as contemplated by Section 1.8), the
Exchange Ratio shall be appropriately adjusted to provide to the holders of
Oryx Common Stock and Xxxx-XxXxx Common Stock the same economic effect as
contemplated by this Agreement prior to such event.
ARTICLE II
EXCHANGE OF CERTIFICATES
2.1 Exchange Fund. Prior to the Effective Time,
Xxxx-XxXxx shall appoint a commercial bank or trust company reasonably
acceptable to Oryx having net capital of not less than $100,000,000, or a
subsidiary thereof, to act as exchange agent hereunder for the purpose of
exchanging certificates which immediately prior to the Effective Time
represented shares of Oryx Common Stock ("Certificates") for the Merger
Consideration (the "Exchange Agent"). From time to time as needed, the
Surviving Corporation shall deposit with the Exchange Agent, in trust for the
benefit of holders of shares of Oryx Common Stock, certificates representing
the Company Common Stock issuable pursuant to Section 1.9(a) in exchange for
shares of Oryx Common Stock outstanding immediately prior to the Effective
Time. The Surviving Corporation shall make available to the Exchange Agent
from time to time, as needed, cash sufficient to pay cash in lieu of
fractional shares pursuant to Section 2.5 and any dividends and other
distributions pursuant to Section 2.3. Any cash and certificates of Company
Common Stock deposited with the Exchange Agent shall hereinafter be referred
to as the "Exchange Fund".
2.2 Exchange and Distribution Procedures. (a)
As soon as reasonably practicable after the Effective Time, the Surviving
Corporation shall cause the Exchange Agent to mail to each holder of a
Certificate (i) a letter of transmittal which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Exchange Agent, and which
letter shall be in customary form and have such other provisions as the
Surviving Corporation may reasonably specify and (ii) instructions for
effecting the surrender of such Certificates in exchange for the applicable
Merger Consideration. Upon surrender of a Certificate to the Exchange Agent
together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such Certificate
shall be entitled to receive in exchange therefor (A) one or more shares of
Company Common Stock representing, in the aggregate, the whole number of
shares that such holder has the right to receive pursuant to Section 1.9(a)
(after taking into account all Certificates delivered by such holder) and (B)
any cash and other property that such holder has the right to receive
pursuant to the provisions of this Article II, including any cash in lieu of
any fractional shares pursuant to Section 2.5, and dividends and other
distributions pursuant to Section 2.3. No interest will be paid or will
accrue on any cash or other property payable pursuant to Section 2.3 or 2.5.
In the event of a transfer of ownership of Oryx Common Stock which is not
registered in the transfer records of Oryx, one or more shares of Company
Common Stock evidencing, in the aggregate, the proper number of shares of
Company Common Stock, any cash in lieu of any fractional shares pursuant to
Section 2.5 and any dividends or other distributions to which such holder is
entitled pursuant to Section 2.3 may be issued and paid with respect to such
Oryx Common Stock free if the Certificate representing such shares of Oryx
Common Stock is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
2.3 Distributions with Respect to Unexchanged
Shares. No dividends or other distributions declared or made with respect to
shares of Company Common Stock with a record date after the Effective Time
shall be paid to the holder of any unsurrendered Certificate with respect to
the shares of Company Common Stock that such holder would be entitled to
receive upon surrender of such Certificate until such holder shall surrender
such Certificate in accordance with Section 2.2. Subject to the effect of
applicable laws, following surrender of any such Certificate, there shall be
paid to such holder of shares of Company Common Stock issuable in exchange
therefor, without interest, (a) promptly after the time of such surrender,
the amount of dividends or other distributions with a record date after the
Effective Time theretofore paid with respect to such shares of Company Common
Stock, and (b) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time but prior to
such surrender and a payment date subsequent to such surrender payable with
respect to such shares of Company Common Stock.
2.4 No Further Ownership Rights in Oryx Common
Stock. All shares of Company Common Stock issued and cash and other property
paid upon conversion of shares of Oryx Common Stock in accordance with the
terms of Article I and this Article II (including pursuant to Section 2.3)
shall be deemed to have been issued or paid in full satisfaction of all
rights pertaining to the shares of Oryx Common Stock. Until surrendered as
contemplated by this Article II, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration.
2.5 No Fractional Shares.
(a) No certificates or scrip or shares of Oryx
Common Stock or Company Common Stock representing fractional shares of Oryx
Common Stock or Company Common Stock shall be issued pursuant to Section 1.8,
1.9 or 2.2 and such fractional share interests will not entitle the owner
thereof to vote or to have any rights of a shareholder of Oryx or the
Surviving Corporation or a holder of shares of Oryx Common Stock or Company
Common Stock.
(b) Notwithstanding any other provision of this
Agreement, each holder of shares of Oryx Common Stock affected by the Reverse
Split and converted pursuant to the Merger who would otherwise have been
entitled to receive a fraction of a share of Company Common Stock (after
taking into account all Certificates delivered by such holder pursuant to
Section 2.2) shall receive, in lieu thereof, cash (without interest) in an
amount equal to the product of (i) such fractional part of a share of Company
Common Stock multiplied by (ii) the closing price for a share of Company
Common Stock on the New York Stock Exchange, Inc. ("NYSE") Composite
Transactions Tape on the Business Day immediately following the date on which
the Effective Time occurs.
2.6 Termination of Exchange Fund. Any portion
of the Exchange Fund which remains undistributed to the holders of
Certificates for six months after the Effective Time shall be delivered to
the Surviving Corporation or otherwise on the instruction of the Surviving
Corporation, and any holders of the Certificates who have not theretofore
complied with this Article II shall thereafter look only to the Surviving
Corporation for the Merger Consideration with respect to the shares of Oryx
Common Stock formerly represented thereby to which such holders are entitled
pursuant to Section 1.9, 2.2 and 2.5 and any dividends or distributions with
respect to shares of Company Common Stock to which such holders are entitled
pursuant to Section 2.3. Any such portion of the Exchange Fund remaining
unclaimed by holders of shares of Certificates three years after the
Effective Time (or such earlier date immediately prior to such time as such
amounts would otherwise escheat to or become property of any Governmental
Entity (as defined in Section 3.1(c)(iii)) shall, to the extent permitted by
law, become the property of the Surviving Corporation free and clear of any
claims or interest of any Person previously entitled thereto.
2.7 No Liability. None of Xxxx-XxXxx, Oryx, the
Surviving Corporation or the Exchange Agent shall be liable to any Person in
respect of any Merger Consideration from the Exchange Fund delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law.
2.8 Investment of the Exchange Fund. The
Exchange Agent shall invest any cash included in the Exchange Fund as
directed by the Surviving Corporation on a daily basis. Any interest and
other income resulting from such investments shall promptly be paid to the
Surviving Corporation.
2.9 Lost Certificates. If any Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the Person claiming such Certificate to be lost, stolen or destroyed
and, if required by the Surviving Corporation, the posting by such Person of
a bond in such reasonable amount as the Surviving Corporation may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Exchange Agent will deliver in exchange for such lost,
stolen or destroyed Certificate the applicable Merger Consideration with
respect to the shares of Oryx Common Stock formerly represented thereby and
unpaid dividends and distributions on shares of Company Common Stock
deliverable in respect thereof pursuant to this Agreement.
2.10 Withholding Rights. The Surviving
Corporation shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of Oryx
Common Stock such amounts as it is required to deduct and withhold with
respect to the making of such payment under the Code and the rules and
regulations promulgated thereunder, or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld by the Surviving
Corporation, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the shares of Oryx Common
Stock in respect of which such deduction and withholding was made by the
Surviving Corporation.
2.11 Further Assurances. At and after the
Effective Time, the officers and directors of the Surviving Corporation will
be authorized to execute and deliver, in the name and on behalf of Oryx and
Xxxx-XxXxx, any deeds, bills of sale, assignments or assurances and to take
and do, in the name and on behalf of Oryx or Xxxx-XxXxx, any other actions
and things to vest, perfect or confirm of record or otherwise in the
Surviving Corporation any and all right, title and interest in, to and under
any of the rights, properties or assets acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger.
2.12 Stock Transfer Books. The stock transfer
books of Oryx shall be closed immediately upon the Effective Time and there
shall be no further registration of transfers of shares of Oryx Common Stock
thereafter on the records of Oryx. On or after the Effective Time, any
Certificates presented to the Exchange Agent or the Surviving Corporation for
any reason shall be converted into the Merger Consideration with respect to
the shares of Oryx Common Stock formerly represented thereby and any
dividends or other distributions to which the holders thereof are entitled
pursuant to Section 2.3.
2.13 Affiliates. Notwithstanding anything to the
contrary herein, no shares of Company Common Stock or cash shall be delivered
to a Person who may be deemed an "affiliate" of Oryx in accordance with
Section 5.11 hereof for purposes of Rule 145 under the Securities Act of
1933, as amended (the "Securities Act"), or for purposes of qualifying the
Merger for pooling of interests accounting treatment under Opinion 16 of the
Accounting Principles Board and applicable rules and regulations of the
Securities and Exchange Commission (the "SEC") until such Person has executed
and delivered an Affiliate Agreement (as defined in Section 5.11) to the
Surviving Corporation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Xxxx-
XxXxx. Except as set forth in the Xxxx-XxXxx Disclosure Schedule delivered
by Xxxx-XxXxx to Oryx prior to the execution of this Agreement (the "Xxxx-
XxXxx Disclosure Schedule") (each section of which qualifies the
correspondingly numbered representation and warranty or covenant to the
extent specified therein), and except as disclosed in the Xxxx-XxXxx SEC
Reports (as defined in Section 3.1(d)) filed with the SEC prior to the date
hereof, excluding the exhibits thereto (the "Current Xxxx-XxXxx SEC
Reports"), Xxxx-XxXxx represents and warrants to Oryx as follows:
(a) Organization, Standing and Power;
Subsidiaries.
(i) Each of Xxxx-XxXxx and each of its
Subsidiaries (as defined in Section 8.11) is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, has the requisite power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority would not
reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx, and
is duly qualified and in good standing to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify or to be in good standing would
not reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx.
The copies of the certificate of incorporation and by-laws of Xxxx-XxXxx
which were previously furnished or made available to Oryx are complete and
correct copies of such documents as in effect on the date of this Agreement.
(ii) Exhibit 21 to Xxxx-XxXxx'x Annual Report on
Form 10-K for the year ended December 31, 1997 includes all the Subsidiaries
of Xxxx-XxXxx which as of the date of this Agreement are Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X of the SEC). All the
outstanding shares of capital stock of, or other equity interests in, each
such Significant Subsidiary have been validly issued and are fully paid and
nonassessable and are owned directly or indirectly by Xxxx-XxXxx, free and
clear of all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever (collectively "Liens") and free of
any other restriction (including any restriction on the right to vote, sell
or otherwise dispose of such capital stock or other ownership interests). As
of the date of this Agreement, neither Xxxx-XxXxx nor any of its Subsidiaries
directly or indirectly owns any equity or similar interest in, or any
interest convertible into or exchangeable or exercisable for, any other
Person that is or would reasonably be expected to be material to Xxxx-XxXxx
and its Subsidiaries taken as a whole.
(b) Capital Structure.
(i) As of September 30, 1998 (the "Xxxx-XxXxx
Measurement Date"), the authorized capital stock of Xxxx-XxXxx consisted of
(A) 150,000,000 shares of Xxxx-XxXxx Common Stock of which 47,407,948 shares
were outstanding, 6,768,990 shares were held in the treasury of Xxxx-XxXxx
and 1,943,740 shares were reserved for issuance upon the exercise of the
Xxxx-XxXxx Stock Options and (B) 40,000,000 shares of Preferred Stock, no par
value per share, of which no shares were outstanding and 1,000,000 shares of
which have been designated Series B Junior Participating Preferred Stock and
reserved for issuance upon exercise of the rights (the "Xxxx-XxXxx Rights")
distributed to the holders of Xxxx-XxXxx Common Stock pursuant to the Rights
Agreement dated as of July 9, 1996 between Xxxx-XxXxx and Bank One Trust
Company, N.A. (as successor by merger to The Liberty National Bank & Trust
Co. of Oklahoma City), as Rights Agent (the "Xxxx-XxXxx Rights Agreement").
Since the Xxxx-XxXxx Measurement Date to the date of this Agreement, there
have been no issuances of shares of the capital stock of Xxxx-XxXxx or any
other securities of Xxxx-XxXxx other than issuances of shares (and
accompanying Xxxx-XxXxx Rights) pursuant to options or rights outstanding as
of the Xxxx-XxXxx Measurement Date under the Benefit Plans (as defined in
Section 8.11) of Xxxx-XxXxx. All issued and outstanding shares of the
capital stock of Xxxx-XxXxx are duly authorized, validly issued, fully paid
and nonassessable, and no class of capital stock is entitled to preemptive
rights. There were outstanding as of the Xxxx-XxXxx Measurement Date no
options, warrants or other rights to acquire capital stock from Xxxx-XxXxx,
directly or indirectly, other than (x) the Xxxx-XxXxx Rights and (y) options
representing in the aggregate the right to purchase 1,943,740 shares of Xxxx-
XxXxx Common Stock (collectively, the "Xxxx-XxXxx Stock Options") under Xxxx-
XxXxx'x 1984 Employee Stock Option Plan, 1987 Long Term Incentive Plan,
Performance Share Plan and 1998 Long Term Incentive Plan (collectively, the
"Xxxx-XxXxx Stock Option Plans"). Section 3.1(b) of the Xxxx-XxXxx
Disclosure Schedule sets forth a complete and correct list, as of the Xxxx-
XxXxx Measurement Date, of the number of shares of Xxxx-XxXxx Common Stock
subject to Xxxx-XxXxx Stock Options or other rights to purchase or receive
Xxxx-XxXxx Common Stock granted under the Xxxx-XxXxx Benefit Plans or
otherwise, the dates of grant and the exercise prices thereof. No options or
warrants or other rights to acquire capital stock from Xxxx-XxXxx have been
issued or granted since the Xxxx-XxXxx Measurement Date to the date of this
Agreement, other than pursuant to the Xxxx-XxXxx Stock Option Agreement.
(ii) No bonds, debentures, notes or other
indebtedness of Xxxx-XxXxx having the right to vote on any matters on which
holders of capital stock of Xxxx-XxXxx may vote ("Xxxx-XxXxx Voting Debt")
are issued or outstanding.
(iii) Except as otherwise set forth in this
Section 3.1(b) and as contemplated by Section 1.9 and Section 1.10, as of the
date of this Agreement, there are no securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any kind to
which Xxxx-XxXxx or any of its Subsidiaries is a party or by which any of
them is bound obligating Xxxx-XxXxx or any of its Subsidiaries, directly or
indirectly, to issue, deliver or sell, or cause to be issued, delivered or
sold, shares of capital stock or other voting securities of Xxxx-XxXxx or any
of its Subsidiaries or obligating Xxxx-XxXxx or any of its Subsidiaries to
issue, grant, extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking. As of the date of
this Agreement, there are no outstanding obligations of Xxxx-XxXxx or any of
its Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of Xxxx-XxXxx or any of its Subsidiaries.
(c) Authority; No Conflicts.
(i) Xxxx-XxXxx has all requisite corporate power
and authority to enter into this Agreement and the Stock Option Agreements
and to consummate the transactions contemplated hereby and thereby, subject,
in the case of the consummation of the Merger, to the adoption of this
Agreement by the stockholders of Xxxx-XxXxx by the Required Xxxx-XxXxx Vote
(as defined in Section 3.1(g)). The execution and delivery of this Agreement
and the Stock Option Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Xxxx-XxXxx, subject, in the case of the
consummation of the Merger, to the adoption of this Agreement by the
stockholders of Xxxx-XxXxx by the Required Xxxx-XxXxx Vote. Each of this
Agreement and the Stock Option Agreements has been duly executed and
delivered by Xxxx-XxXxx and constitutes a valid and binding agreement of
Xxxx-XxXxx, enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditors generally or
by general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(ii) The execution and delivery of this Agreement
and the Stock Option Agreements by Xxxx-XxXxx does not or will not, as the
case may be, and the consummation by Xxxx-XxXxx of the Merger and the other
transactions contemplated hereby and thereby will not, conflict with, or
result in any violation of, or constitute a default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
amendment, cancellation or acceleration of any obligation, a right to require
redemption or repurchase of or otherwise "put" securities, or the loss of a
material benefit, under, or the creation of a lien, pledge, security
interest, charge or other encumbrance on any assets (any such conflict,
violation, default, right of termination, amendment, cancellation,
acceleration, redemption or repurchase, "put" right, loss or creation, a
"Violation") pursuant to: (A) any provision of the certificate of
incorporation or by-laws of Xxxx-XxXxx, or any similar organizational
documents of any material Subsidiary of Xxxx-XxXxx, or (B) except as would
not reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx,
subject to obtaining or making the consents, approvals, orders,
authorizations, registrations, declarations and filings referred to in
paragraph (iii) below, any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Xxxx-XxXxx or any Subsidiary
of Xxxx-XxXxx or their respective properties or assets.
(iii) No consent, approval, order or authorization
of, or registration, declaration or filing with, any supranational, national,
state, municipal, local or foreign government, any instrumentality,
subdivision, court, administrative agency or commission or other authority
thereof, or any quasi-governmental or private body exercising any regulatory,
taxing, importing or other governmental or quasi-governmental authority (a
"Governmental Entity"), is required by or with respect to Xxxx-XxXxx or any
Subsidiary of Xxxx-XxXxx in connection with the execution and delivery of
this Agreement or the Stock Option Agreements by Xxxx-XxXxx or the
consummation by Xxxx-XxXxx of the Merger and the other transactions
contemplated hereby and thereby, except for those required under or in
relation to (A) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (B) state securities or "blue sky" laws (the "Blue
Sky Laws"), (C) the Securities Act, (D) the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (E) the DGCL with respect to the filing of
the Certificate of Merger, (F) rules and regulations of the NYSE, (G)
antitrust or other competition laws of other jurisdictions, and (H) such
consents, approvals, orders, authorizations, registrations, declarations and
filings the failure of which to make or obtain would not reasonably be
expected to have a Material Adverse Effect on Xxxx-XxXxx. Consents,
approvals, orders, authorizations, registrations, declarations and filings
required under or in relation to any of the foregoing clauses (A) through (G)
are hereinafter referred to as "Necessary Consents".
(d) Reports and Financial Statements.
(i) Xxxx-XxXxx has filed all required
registration statements, prospectuses, reports, schedules, forms, statements
and other documents required to be filed by it with the SEC since January 1,
1997 (collectively, including all exhibits thereto, the "Xxxx-XxXxx SEC
Reports"). Since such date, no Subsidiary of Xxxx-XxXxx has been required to
file or has filed any form, report, registration statement, prospectus or
other document with the SEC. None of the Xxxx-XxXxx SEC Reports, as of their
respective dates (and, if amended or superseded by a filing prior to the date
of this Agreement or the Closing Date, then as of the date of such filing),
contained or will contain any untrue statement of a material fact or omitted
or will omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Each of the financial statements
(including the related notes) included in the Xxxx-XxXxx SEC Reports presents
fairly, in all material respects, the consolidated financial position and
consolidated results of operations and cash flows of Xxxx-XxXxx and its
Subsidiaries as of the respective dates or for the respective periods set
forth therein, all in conformity with GAAP consistently applied during the
periods involved except as otherwise noted therein, and subject, in the case
of the unaudited interim financial statements, to normal and recurring year-
end adjustments that have not been and are not expected to be material in
amount. All of such Xxxx-XxXxx SEC Reports, as of their respective dates
(and as of the date of any amendment to the respective Xxxx-XxXxx SEC
Report), complied as to form in all material respects with the applicable
requirements of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder.
(ii) Since December 31, 1997, Xxxx-XxXxx and its
Subsidiaries have not incurred any liabilities that are of a nature that
would be required to be disclosed on a consolidated balance sheet of Xxxx-
XxXxx and its Subsidiaries or the footnotes thereto prepared in conformity
with GAAP, other than (A) liabilities incurred in the ordinary course of
business or (B) liabilities that would not reasonably be expected to have a
Material Adverse Effect on Xxxx-XxXxx.
(e) Information Supplied.
(i) None of the information supplied or to be
supplied by Xxxx-XxXxx for inclusion or incorporation by reference in (A) the
Form S-4 (as defined in Section 5.1) will, at the time the Form S-4 is filed
with the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (B)
the Joint Proxy Statement/Prospectus (as defined in Section 5.1) will, on the
date it is first mailed to Oryx stockholders or Xxxx-XxXxx stockholders or at
the time of the Oryx Stockholders Meeting or the Xxxx-XxXxx Stockholders
Meeting (each as defined in Section 5.1), contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The portions of
the Form S-4 and the Joint Proxy Statement/Prospectus supplied by Xxxx-XxXxx
(whether by inclusion or by incorporation by reference therein) will comply
as to form in all material respects with the requirements of the Exchange Act
and the Securities Act and the rules and regulations of the SEC thereunder.
(ii) Notwithstanding the foregoing provisions of
this Section 3.1(e), no representation or warranty is made by Xxxx-XxXxx with
respect to statements made or incorporated by reference in the Form S-4 or
the Joint Proxy Statement/Prospectus based on information supplied by Oryx
for inclusion or incorporation by reference therein.
(f) Board Approval. The Board of Directors of
Xxxx-XxXxx, by resolutions duly adopted by unanimous vote at a meeting duly
called and held and not subsequently rescinded or modified in any way (the
"Xxxx-XxXxx Board Approval") (except as otherwise permitted following the
date hereof pursuant to Section 5.1 or 5.4), has duly (i) determined that
this Agreement and the Stock Option Agreements, and the Merger and the other
transactions contemplated hereby and thereby, are advisable and are fair to
and in the best interests of Xxxx-XxXxx and its stockholders, (ii) approved
this Agreement and the Stock Option Agreements, and the Merger and the other
transactions contemplated hereby and thereby, (iii) recommended that the
stockholders of Xxxx-XxXxx adopt this Agreement and (iv) directed that this
Agreement and the Merger be submitted for consideration by Xxxx-XxXxx'x
stockholders at the Xxxx-XxXxx Stockholders Meeting. The Xxxx-XxXxx Board
Approval constitutes approval of this Agreement and the Xxxx-XxXxx Stock
Option Agreement, and the Merger and other transactions contemplated hereby
and thereby, for purposes of Section 203 of the DGCL and Article Thirteenth
of Xxxx-XxXxx'x Certificate of Incorporation. To the knowledge of Xxxx-
XxXxx, except for Section 203 of the DGCL (which has been rendered
inapplicable), no state takeover statute is applicable to this Agreement or
the Xxxx-XxXxx Stock Option Agreement or the Merger or the other transactions
contemplated hereby or thereby.
(g) Vote Required. The affirmative vote of the
holders of a majority of the outstanding shares of Xxxx-XxXxx Common Stock
(excluding any shares owned or held by Xxxx-XxXxx or any of its Subsidiaries)
(the "Required Xxxx-XxXxx Vote") is the only vote of the holders of any class
or series of Xxxx-XxXxx capital stock necessary to adopt this Agreement
(assuming that Oryx is not an "interested stockholder" of Xxxx-XxXxx under
Section 203 of the DGCL immediately before the execution and delivery of this
Agreement).
(h) Litigation; Compliance with Laws.
(i) There is no suit, action or proceeding pending
or, to the knowledge of Xxxx-XxXxx, threatened against or affecting Xxxx-
XxXxx or any Subsidiary of Xxxx-XxXxx having, or which would reasonably be
expected to have, a Material Adverse Effect on Xxxx-XxXxx, nor is there any
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against Xxxx-XxXxx or any Subsidiary of Xxxx-XxXxx
having, or which reasonably would be expected to have, a Material Adverse
Effect on Xxxx-XxXxx.
(ii) Except as would not reasonably be expected to
have a Material Adverse Effect on Xxxx-XxXxx, Xxxx-XxXxx and its Subsidiaries
hold all permits, licenses, variances, exemptions, orders and approvals of
all Governmental Entities which are necessary for the operation of the
businesses of Xxxx-XxXxx and its Subsidiaries, taken as a whole (the "Xxxx-
XxXxx Permits"). Xxxx-XxXxx and its Subsidiaries are in compliance with the
terms of the Xxxx-XxXxx Permits, except where the failure so to comply would
not reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx.
The businesses of Xxxx-XxXxx and its Subsidiaries are not being conducted in
violation of, and Xxxx-XxXxx and its Subsidiaries have not received any
notices of violations with respect to, any law, ordinance or regulation of
any Governmental Entity, except for possible violations which would not
reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx.
(i) Absence of Certain Changes or Events.
Except for liabilities incurred in connection with this Agreement and the
Stock Option Agreements or the transactions contemplated hereby and thereby
and except as permitted by Sections 4.1 and 5.5, since December 31, 1997,
Xxxx-XxXxx and its Subsidiaries have conducted their business only in the
ordinary course and there has not been (i) any change, circumstance or event
which has had, or would reasonably be expected to have, a Material Adverse
Effect on Xxxx-XxXxx or (ii) any action taken by Xxxx-XxXxx or any of its
Subsidiaries during the period from December 31, 1997 through the date of
this Agreement that, if taken during the period from the date of this
Agreement through the Effective Time, would constitute a breach of Section
4.1.
(j) Environmental Matters. Except as would not
reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx: (i)
the operations of Xxxx-XxXxx and its Subsidiaries have been and are in
compliance with all Environmental Laws and with all licenses required by
Environmental Laws (as defined below), (ii) there are no pending or, to the
knowledge of Xxxx-XxXxx, threatened actions, suits, claims, investigations or
other proceedings (collectively, "Actions") under or pursuant to
Environmental Laws against Xxxx-XxXxx or its Subsidiaries or involving any
real property currently or, to the knowledge of Xxxx-XxXxx, formerly owned,
operated or leased by Xxxx-XxXxx or its Subsidiaries, (iii) Xxxx-XxXxx and
its Subsidiaries are not subject to any Environmental Liabilities (as defined
below), and, to the knowledge of Xxxx-XxXxx, no facts, circumstances or
conditions relating to, arising from, associated with or attributable to any
real property currently or formerly owned, operated or leased by Xxxx-XxXxx
or its Subsidiaries or operations thereon would reasonably be expected to
result in Environmental Liabilities and (iv) all real property owned and, to
the knowledge of Xxxx-XxXxx, all real property operated or leased by Xxxx-
XxXxx or its Subsidiaries is free of contamination from Hazardous Material
(as defined below) that would have an adverse effect on human health or the
environment.
As used in this Agreement, "Environmental Laws"
means any and all federal, foreign, state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decisions, injunctions,
orders, decrees, requirements of any Governmental Entity, any and all common
law requirements, rules and bases of liability regulating, relating to or
imposing liability or standards of conduct concerning pollution, Hazardous
Materials or protection of human health or safety as relating to the
environment or the workplace, or the protection of the environment, as
currently in effect and includes the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq., the
Clean Water Act, 33 U.S.C. Sections 1251, et seq., the Clean Air Act, 33
U.S.C. Sections 2601, et seq., the Toxic Substances Control Act, 15 U.S.C.
Sections 2601, et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C., Sections 136, et seq., Occupational Safety and Health Act 29
U.S.C. Sections 651, et seq. and the Oil Pollution Act of 1990, 33 U.S.C.
Sections 2701, et seq., as such laws have been amended or supplemented, and
the regulations promulgated pursuant thereto, and all analogous state or
local statutes. As used in this Agreement, "Environmental Liabilities" with
respect to any person means any and all liabilities of or relating to such
person or any of its Subsidiaries (including any entity which is, in whole or
in part, a predecessor of such person or any of such Subsidiaries), whether
vested or unvested, contingent or fixed, actual or potential, known or
unknown, which (i) arise under or relate to matters covered by Environmental
Laws and (ii) relate to actions occurring or conditions existing on or prior
to the Closing Date. As used in this Agreement, "Hazardous Materials" means
any hazardous or toxic substances, materials or wastes, defined, listed,
classified or regulated as such in or under any Environmental Laws which
includes petroleum, petroleum products, friable asbestos, urea formaldehyde
and polychlorinated biphenyls and any other substance that could result in
liability under any Environmental Laws.
(k) Intellectual Property. Except as would not
reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx: (a)
Xxxx-XxXxx and each of its Subsidiaries owns, or is licensed to use (in each
case, free and clear of any Liens), all Intellectual Property (as defined
below) used in or necessary for the conduct of its business as currently
conducted; (b) the use of any Intellectual Property by Xxxx-XxXxx and its
Subsidiaries does not infringe on or otherwise violate the rights of any
Person and is in accordance with any applicable license pursuant to which
Xxxx-XxXxx or any Subsidiary acquired the right to use any Intellectual
Property; (c) to the knowledge of Xxxx-XxXxx, no Person is challenging,
infringing on or otherwise violating any right of Xxxx-XxXxx or any of its
Subsidiaries with respect to any Intellectual Property owned by and/or
licensed to Xxxx-XxXxx or its Subsidiaries; and (d) neither Xxxx-XxXxx nor
any of its Subsidiaries has received any written notice of any pending claim
with respect to any Intellectual Property used by Xxxx-XxXxx and its
Subsidiaries and to its knowledge no Intellectual Property owned and/or
licensed by Xxxx-XxXxx or its Subsidiaries is being used or enforced in a
manner that would result in the abandonment, cancellation or unenforceability
of such Intellectual Property. For purposes of this Agreement, "Intellectual
Property" shall mean trademarks, service marks, brand names, certification
marks, trade dress and other indications of origin, the goodwill associated
with the foregoing and registrations in any jurisdiction of, and applications
in any jurisdiction to register, the foregoing, including any extension,
modification or renewal of any such registration or application; inventions,
discoveries and ideas, whether patentable or not, in any jurisdiction;
patents, applications for patents (including, without limitation, divisions,
continuations, continuations in part and renewal applications), and any
renewals, extensions or reissues thereof, in any jurisdiction; nonpublic
information, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; writings
and other works, whether copyrightable or not, in any jurisdiction;
registrations or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof; any similar
intellectual property or proprietary rights; and any claims or causes of
action arising out of or relating to any infringement or misappropriation of
any of the foregoing.
(l) Rights Agreement. The Board of Directors of
Xxxx-XxXxx has approved an amendment to the Xxxx-XxXxx Rights Agreement to
the effect that neither Oryx nor any of its affiliates shall become an
"Acquiring Person", and that no "Stock Acquisition Date" or "Distribution
Date" (as such terms are defined in the Xxxx-XxXxx Rights Agreement) will
occur, by reason of the approval, execution or delivery of this Agreement or
the Xxxx-XxXxx Stock Option Agreement or the consummation of the Merger or
the other transactions contemplated hereby or thereby, and will cause the
trustee under the Xxxx-XxXxx Rights Agreement to execute such amendment as
soon as possible after the execution hereof.
(m) Brokers or Finders. No agent, broker,
investment banker, financial advisor or other firm or Person is or will be
entitled to any broker's or finder's fee or any other similar commission or
fee in connection with any of the transactions contemplated by this Agreement
or the Stock Option Agreements based upon arrangements made by or on behalf
of Xxxx-XxXxx, except Xxxxxx Brothers Inc. (the "Xxxx-XxXxx Financial
Advisor"), whose fees and expenses will be paid by Xxxx-XxXxx in accordance
with Xxxx-XxXxx'x agreement with such firm, a copy of which has been provided
to Oryx.
(n) Opinion of Xxxx-XxXxx Financial Advisor.
Xxxx-XxXxx has received the opinion of the Xxxx-XxXxx Financial Advisor,
dated the date of this Agreement, to the effect that, as of such date, the
Exchange Ratio is fair, from a financial point of view, to Xxxx-XxXxx, a copy
of which opinion will be made available to Oryx.
(o) Accounting Matters. Neither Xxxx-XxXxx nor
any of its affiliates has taken or agreed to take any action that would
prevent Xxxx-XxXxx from accounting for the Merger as a "pooling of
interests". At or prior to the date hereof, Xxxx-XxXxx has received a letter
from its independent public accountants addressed to Xxxx-XxXxx, with a copy
to Oryx, to the effect that, based upon representations provided by Xxxx-
XxXxx and Oryx and a poolability letter from the independent public
accountants of Oryx, accounting for the Merger as a pooling of interests
under Opinion 16 of the Accounting Principles Board and applicable SEC rules
and regulations is appropriate if the Merger is consummated and closed as
contemplated by this Agreement.
(p) Taxes. Each of Xxxx-XxXxx and its
Subsidiaries has filed all Tax Returns required to have been filed (or
extensions have been duly obtained) and has paid all Taxes required to have
been paid by it, except where failure to file such Tax Returns or pay such
Taxes would not reasonably be expected to have a Material Adverse Effect on
Xxxx-XxXxx. For purposes of this Agreement: (i) "Tax" (and, with correlative
meaning, "Taxes") means any federal, state, local or foreign income, gross
receipts, property, sales, use, license, excise, franchise, employment,
payroll, withholding, alternative or add on minimum, ad valorem, transfer or
excise tax, or any other tax, custom, duty, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest or
penalty, imposed by any governmental authority and (ii) "Tax Return" means
any return, report or similar statement required to be filed with respect to
any Tax (including any attached schedules), including, without limitation,
any information return, claim for refund, amended return or declaration of
estimated Tax.
(q) Certain Contracts. As of the date hereof,
except as set forth in the Current Xxxx-XxXxx SEC Reports, neither Xxxx-XxXxx
nor any of its Subsidiaries is a party to or bound by (i) any "material
contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of
the SEC) or (ii) any non-competition agreement or any other agreement or
arrangement that limits or otherwise restricts Xxxx-XxXxx or any of its
Subsidiaries or any of their respective affiliates or any successor thereto
or that would, after the Effective Time, to the knowledge of Xxxx-XxXxx,
limit or restrict the Surviving Corporation or any of its Subsidiaries or any
of their respective affiliates or any successor thereto from engaging or
competing in any line of business or in any geographic area.
(r) Employee Benefits.
(i) Except as set forth in Section 3.1(r) of the
Xxxx-XxXxx Disclosure Schedule (together, the "Xxxx-XxXxx Plans"), Xxxx-XxXxx
has no material Benefit Plans. Copies or descriptions of the Xxxx-XxXxx
Plans have been made available to Oryx.
(ii) Each Xxxx-XxXxx Plan has been administered
and is in compliance with the terms of such plan and all applicable laws,
rules and regulations where the failure thereof would result in liability
that would be reasonably expected to have a Material Adverse Effect on Xxxx-
XxXxx.
(iii) Each Xxxx-XxXxx Plan intended to be
qualified has received a favorable determination from the Internal Revenue
Service and to Xxxx-XxXxx'x knowledge, nothing has occurred since that would
adversely affect such qualification.
(iv) Except as would not be reasonably expected
to have a Material Adverse Effect on Xxxx-XxXxx: (x) no "reportable event"
(as such term is used in section 4043 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) (other than those events for
which the 30-day notice has been waived pursuant to the regulations) is
pending with respect to any Xxxx-XxXxx Plan, and (ii) no "accumulated funding
deficiency" (as such term is used in section 412 or 4971 of the Code) has
occurred during the last 5 years with respect to any Xxxx-XxXxx Plan.
(v) No litigation or administrative or other
proceeding involving any Xxxx-XxXxx Plans has occurred or, to the Xxxx-
XxXxx'x knowledge, is threatened where an adverse determination would result
in liability that would be reasonably expected to have a Material Adverse
Effect on Xxxx-XxXxx.
(vi) Xxxx-XxXxx has not contributed to any
"multiemployer plan" (within the meaning of section 3(37) of ERISA) and
neither Xxxx-XxXxx nor any member of its "Controlled Group" (defined as any
organization which is a member of a controlled group of organizations within
the meaning of Code sections 414(b), (c), (m) or (o)) has incurred any
withdrawal liability which remains unsatisfied in an amount which would
result in liability that has had or would be reasonably expected to have a
Material Adverse Effect on Xxxx-XxXxx.
(vii) No Xxxx-XxXxx Plan or multiemployer plan to
which the Xxxx-XxXxx contributed has been terminated where such termination
has resulted in liability under Title IV of ERISA that has had or would be
reasonably expected to have a Material Adverse Effect on Xxxx-XxXxx.
(s) Labor Matters. Neither Xxxx-XxXxx nor any
of its Subsidiaries: (i) is a party to or otherwise bound by any collective
bargaining agreement, contract or other agreement or understanding with a
labor union or labor organization, nor is any such contract or agreement
presently being negotiated, nor is there, nor has there been in the last five
years, a representation question respecting any of the employees of Xxxx-
XxXxx or its Subsidiaries, and, to the knowledge of Xxxx-XxXxx, there are no
campaigns being conducted to solicit cards from employees of Xxxx-XxXxx or
its Subsidiaries to authorize representation by any labor organization; (ii)
is a party to, or bound by, any consent decree with, or citation by, any
governmental agency relating to employees or employment practices which would
reasonably be expected to have a Material Adverse Effect on Xxxx-XxXxx; or
(iii) is the subject of any proceeding asserting that it has committed an
unfair labor practice or is seeking to compel it to bargain with any labor
union or labor organization nor, as of the date of this Agreement, is there
pending or, to the knowledge of Xxxx-XxXxx, threatened, any labor strike,
dispute, walkout, work stoppage, slow-down or lockout involving Xxxx-XxXxx or
any of its Subsidiaries which, with respect to any event described in this
clause (iii), would reasonably be expected to have a Material Adverse Effect
on Xxxx-XxXxx.
(t) Ownership of Oryx Common Stock. Neither
Xxxx-XxXxx nor any of its Subsidiaries beneficially owns, directly or
indirectly, any Oryx Common Stock other than pursuant to the Oryx Stock
Option Agreement.
3.2 Representations and Warranties of Oryx.
Except as set forth in the Oryx Disclosure Schedule delivered by Oryx to
Xxxx-XxXxx prior to the execution of this Agreement (the "Oryx Disclosure
Schedule") (each section of which qualifies the correspondingly numbered
representation and warranty or covenant to the extent specified therein), and
except as disclosed in the Oryx SEC Reports (as defined in Section 3.2(d))
filed with the SEC prior to the date hereof, excluding the exhibits thereto
(the "Current Oryx SEC Reports"), Oryx represents and warrants to Xxxx-XxXxx
as follows:
(a) Organization, Standing and Power;
Subsidiaries.
(i) Each of Oryx and each of its Subsidiaries is
a corporation or other legal entity duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization, has the requisite power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, except
where the failure to be so organized, existing and in good standing or to
have such power and authority would not reasonably be expected to have a
Material Adverse Effect on Oryx, and is duly qualified and in good standing
to do business in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification necessary
other than in such jurisdictions where the failure so to qualify or to be in
good standing would not reasonably be expected to have a Material Adverse
Effect on Oryx. The copies of the certificate of incorporation and by-laws
of Oryx which were previously furnished or made available to Xxxx-XxXxx are
complete and correct copies of such documents as in effect on the date of
this Agreement.
(ii) Exhibit 21 to Oryx's Annual Report on Form
10-K for the year ended December 31, 1997 includes all the Subsidiaries of
Oryx which as of the date of this Agreement are Significant Subsidiaries (as
defined in Rule 1-02 of Regulation S-X of the SEC). All the outstanding
shares of capital stock of, or other equity interests in, each such
Significant Subsidiary have been validly issued and are fully paid and
nonassessable and are owned directly or indirectly by Oryx, free and clear of
all Liens and free of any other restriction (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock or other
ownership interests). Neither Oryx nor any of its Subsidiaries directly or
indirectly owns any equity or similar interest in, or any interest
convertible into or exchangeable or exercisable for, any other Person that is
or would reasonably be expected to be material to Oryx and its Subsidiaries
taken as a whole.
(b) Capital Structure.
(i) As of October 8, 1998 (the "Oryx Measurement
Date"), the authorized capital stock of Oryx consisted of (A) 250,000,000
shares of Oryx Common Stock, of which 106,233,579 shares were outstanding,
17,468,095 shares were held in the treasury of Oryx, 3,001,876 shares were
held by a Subsidiary of Oryx, 5,111,438 shares were reserved for issuance
upon the conversion of Oryx's 7-1/2% Convertible Subordinated Debentures due
May 15, 2014 (the "Oryx Debentures") and 7,135,302 shares were reserved for
issuance upon the exercise of the Oryx Stock Options or available for grant
of other rights to purchase or receive Oryx Common Stock granted under the
Oryx Plans (as defined below), (B) 7,740,606 shares of Cumulative Preference
Stock, par value $1.00 per share, none of which were outstanding and 120,000
shares of which have been designated Series A Junior Cumulative Preference
Stock and reserved for issuance upon exercise of the rights (the "Oryx
Rights") distributed to the holders of Oryx Common Stock pursuant to the
Rights Agreement dated as of September 11, 1990, between Oryx and Chase
Manhattan Bank (as successor by merger to Manufacturers Hanover Trust
Company), as Rights Agent, as amended (the "Oryx Rights Agreement"), and (C)
15,000,000 shares of Preferred Stock, par value $1.00 per share, none of
which were outstanding, designated or reserved for issuance. Since the Oryx
Measurement Date to the date of this Agreement, there have been no issuances
of shares of the capital stock of Oryx or any other securities of Oryx other
than issuances of shares (and accompanying Oryx Rights) pursuant to options
or rights outstanding as of the Oryx Measurement Date under the Benefit Plans
of Oryx. All issued and outstanding shares of the capital stock of Oryx are
duly authorized, validly issued, fully paid and nonassessable, and no class
of capital stock is entitled to preemptive rights. There were outstanding as
of the Oryx Measurement Date no options, warrants or other rights to acquire
capital stock, directly or indirectly, from Oryx other than (x) the Oryx
Rights, (y) options representing in the aggregate the right to purchase no
more than 2,659,709 (collectively, the "Oryx Stock Options") under Oryx's
Long-Term Incentive Plan, 1992 Long-Term Incentive Plan and 1997 Long-Term
Incentive Plan (collectively, the "Oryx Stock Option Plans") and (z) the Oryx
Debentures. Section 3.2(b) of the Oryx Disclosure Schedule sets forth a
complete and correct list, as of the Oryx Measurement Date, of the number of
shares of Oryx Common Stock subject to Oryx Stock Options or other rights to
purchase or receive Oryx Common Stock granted under the Oryx Benefit Plans or
otherwise, the dates of grant and the exercise prices thereof. No options or
warrants or other rights to acquire capital stock from Oryx have been issued
or granted since the Oryx Measurement Date to the date of this Agreement,
other than pursuant to the Oryx Stock Option Agreement.
(ii) No bonds, debentures, notes or other
indebtedness of Oryx having the right to vote on any matters on which holders
of capital stock may vote ("Oryx Voting Debt") are issued or outstanding.
(iii) Except as otherwise set forth in this
Section 3.2(b), as of the date of this Agreement, there are no securities,
options, warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which Oryx or any of its Subsidiaries is a party
or by which any of them is bound obligating Oryx or any of its Subsidiaries,
directly or indirectly, to issue, deliver or sell, or cause to be issued,
delivered or sold, shares of capital stock or other voting securities of Oryx
or any of its Subsidiaries or obligating Oryx or any of its Subsidiaries to
issue, grant, extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking. As of the date of
this Agreement, there are no outstanding obligations of Oryx or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of Oryx or any of its Subsidiaries.
(iv) No action, consent or approval by any holder
of Oryx Stock Options or Oryx Debentures is required in connection with the
actions described in Sections 1.10(a) and 5.13.
(c) Authority; No Conflicts.
(i) Oryx has all requisite corporate power and
authority to enter into this Agreement and the Stock Option Agreements and to
consummate the transactions contemplated hereby and thereby, subject, in the
case of the consummation of the Reverse Split and the Merger, to the approval
of the Reverse Split and the adoption of this Agreement by the stockholders
of Oryx by the Required Oryx Vote (as defined in Section 3.2(g)). The
execution and delivery of this Agreement and the Stock Option Agreements and
the consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of Oryx,
subject, in the case of the consummation of the Reverse Split and the Merger,
to the approval of the Reverse Split and the adoption of this Agreement by
the stockholders of Oryx by the Required Oryx Vote. Each of this Agreement
and the Stock Option Agreements has been duly executed and delivered by Oryx
and constitutes a valid and binding agreement of Oryx, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws relating
to or affecting creditors generally or by general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(ii) The execution and delivery of this Agreement
and the Stock Option Agreements by Oryx does not or will not, as the case may
be, and the consummation by Oryx of the Merger and the other transactions
contemplated hereby and thereby will not, result in a Violation of or
pursuant to: (A) any provision of the certificate of incorporation or by-laws
of Oryx, or any similar organizational documents of any material Subsidiary
of Oryx, or (B) except as would not reasonably be expected to have a Material
Adverse Effect on Oryx, subject to obtaining or making the consents,
approvals, orders, authorizations, registrations, declarations and filings
referred to in paragraph (iii) below, any loan or credit agreement, note,
mortgage, bond, indenture, lease, benefit plan or other agreement,
obligation, instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Oryx
or any Subsidiary of Oryx or their respective properties or assets.
(iii) No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to Oryx or any Subsidiary of Oryx in connection
with the execution and delivery of this Agreement or the Stock Option
Agreements by Oryx or the consummation by Oryx of the Merger and the other
transactions contemplated hereby and thereby, except the Necessary Consents
and such consents, approvals, orders, authorizations, registrations,
declarations and filings the failure of which to make or obtain would not
reasonably be expected to have a Material Adverse Effect on Oryx.
(d) Reports and Financial Statements.
(i) Each of Oryx and Sun Energy Partners, L.P.
("Oryx Partnership") has filed all required registration statements,
prospectuses, reports, schedules, forms, statements and other documents
required to be filed by it with the SEC since January 1, 1997 (collectively,
including all exhibits thereto, the "Oryx SEC Reports"). Since such date, no
other Subsidiary of Oryx has been required to file or has filed any form,
report, registration statement, prospectus or other document with the SEC.
None of the Oryx SEC Reports, as of their respective dates (and, if amended
or superseded by a filing prior to the date of this Agreement or the Closing
Date, then as of the date of such filing), contained or will contain any
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Each of the financial statements (including the related
notes) included in the Oryx SEC Reports presents fairly, in all material
respects, the consolidated financial position and consolidated results of
operations and cash flows of Oryx or Oryx Partnership, as the case may be,
and its Subsidiaries as of the respective dates or for the respective periods
set forth therein, all in conformity with GAAP consistently applied during
the periods involved except as otherwise noted therein, and subject, in the
case of the unaudited interim financial statements, to normal and recurring
year-end adjustments that have not been and are not expected to be material
in amount. All of such Oryx SEC Reports, as of their respective dates (and
as of the date of any amendment to the respective Oryx SEC Report), complied
as to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder.
(ii) Since December 31, 1997, Oryx and its
Subsidiaries have not incurred any liabilities that are of a nature that
would be required to be disclosed on a consolidated balance sheet of Oryx or
Oryx Partnership, as the case may be, and its Subsidiaries or the footnotes
thereto prepared in conformity with GAAP, other than (A) liabilities incurred
in the ordinary course of business or (B) liabilities that would not
reasonably be expected to have a Material Adverse Effect on Oryx.
(e) Information Supplied.
(i) None of the information supplied or to be
supplied by Oryx for inclusion or incorporation by reference in (A) the Form
S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is
amended or supplemented or at the time it becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading and (B) the Joint Proxy
Statement/Prospectus will, on the date it is first mailed to Oryx
stockholders or Xxxx-XxXxx stockholders or at the time of the Oryx
Stockholders Meeting or the Xxxx-XxXxx Stockholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The portions of the Form S-4 and the Joint Proxy
Statement/Prospectus supplied by Oryx (whether by inclusion or by
incorporation by reference therein) will comply as to form in all material
respects with the requirements of the Exchange Act and the Securities Act and
the rules and regulations of the SEC thereunder.
(ii) Notwithstanding the foregoing provisions of
this Section 3.2(e), no representation or warranty is made by Oryx with
respect to statements made or incorporated by reference in the Form S-4 or
the Joint Proxy Statement/Prospectus based on information supplied by Xxxx-
XxXxx for inclusion or incorporation by reference therein.
(f) Board Approval. The Board of Directors of
Oryx, by resolutions duly adopted by unanimous vote at a meeting duly called
and held and not subsequently rescinded or modified in any way (the "Oryx
Board Approval") (except as otherwise permitted following the date hereof
pursuant to Section 5.1 or 5.4), has duly (i) determined that this Agreement
and the Stock Option Agreements, and the Merger and other transactions
contemplated hereby and thereby, are advisable and are fair to and in the
best interests of Oryx and its stockholders, (ii) approved this Agreement and
the Stock Option Agreements, and the Merger and other transactions
contemplated hereby and thereby, (iii) recommended that the stockholders of
Oryx adopt this Agreement and (iv) directed that this Agreement and the
Merger be submitted for consideration by Oryx's stockholders at the Oryx
Stockholders Meeting. The Oryx Board Approval constitutes approval of this
Agreement and the Oryx Stock Option Agreement, and the Merger and other
transactions contemplated hereby and thereby, for purposes of Section 203 of
the DGCL and Article Sixth of Oryx's Certificate of Incorporation. To the
knowledge of Oryx, except for Section 203 of the DGCL (which has been
rendered inapplicable), no state takeover statute is applicable to this
Agreement or the Oryx Stock Option Agreement, or the Merger or the other
transactions contemplated hereby or thereby.
(g) Vote Required. The affirmative vote of the
holders of a majority of the outstanding shares of Oryx Common Stock
(excluding any shares owned or held by Oryx or any of its Subsidiaries) (the
"Required Oryx Vote") is the only vote of the holders of any class or series
of Oryx capital stock necessary to adopt this Agreement and approve the
Reverse Split (assuming that Xxxx-XxXxx is not an "interested stockholder" of
Oryx under Section 203 of the DGCL immediately before the execution and
delivery of this Agreement).
(h) Litigation; Compliance with Laws.
(i) There is no suit, action or proceeding
pending or, to the knowledge of Oryx, threatened against or affecting Oryx
or any Subsidiary of Oryx having, or which would reasonably be expected to
have, a Material Adverse Effect on Oryx, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator
outstanding against Oryx or any Subsidiary of Oryx having, or which
reasonably would be expected to have, a Material Adverse Effect on Oryx.
(ii) Except as would not reasonably be expected
to have a Material Adverse Effect on Oryx, Oryx and its Subsidiaries hold all
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities which are necessary for the operation of the businesses
of Oryx and its Subsidiaries, taken as a whole (the "Oryx Permits"). Oryx
and its Subsidiaries are in compliance with the terms of the Oryx Permits,
except where the failure so to comply would not reasonably be expected to
have a Material Adverse Effect on Oryx. The businesses of Oryx and its
Subsidiaries are not being conducted in violation of, and Oryx and its
Subsidiaries have not received any notices of violations with respect to, any
law, ordinance or regulation of any Governmental Entity, except for possible
violations which would not reasonably be expected to have a Material Adverse
Effect on Oryx.
(i) Absence of Certain Changes or Events.
Except for liabilities incurred in connection with this Agreement and the
Stock Option Agreements or the transactions contemplated hereby and thereby
and except as permitted by Sections 4.2 and 5.5, since December 31, 1997,
Oryx and its Subsidiaries have conducted their business only in the ordinary
course and there has not been (i) any change, circumstance or event which has
had, or would reasonably be expected to have, a Material Adverse Effect on
Oryx or (ii) any action taken by Oryx or any of its Subsidiaries during the
period from December 31, 1997 through the date of this Agreement that, if
taken during the period from the date of this Agreement through the Effective
Time, would constitute a breach of Section 4.2.
(j) Environmental Matters. Except as would not
reasonably be expected to have a Material Adverse Effect on Oryx: (i) the
operations of Oryx and its Subsidiaries have been and are in compliance with
all Environmental Laws and with all licenses required by Environmental Laws
(ii) there are no pending or, to the knowledge of Oryx, threatened Actions
under or pursuant to Environmental Laws against Oryx or its Subsidiaries or
involving any real property currently or, to the knowledge of Oryx, formerly
owned, operated or leased by Oryx or its Subsidiaries, (iii) Oryx and its
Subsidiaries are not subject to any Environmental Liabilities and, to the
knowledge of Oryx, no facts, circumstances or conditions relating to, arising
from, associated with or attributable to any real property currently or
formerly owned, operated or leased by Oryx or its Subsidiaries or operations
thereon would reasonably be expected to result in Environmental Liabilities
and (iv) all real property owned and, to the knowledge of Oryx, all real
property operated or leased by Oryx or its Subsidiaries is free of
contamination from Hazardous Material that would have an adverse effect on
human health or the environment.
(k) Intellectual Property. Except as would not
reasonably be expected to have a Material Adverse Effect on Oryx: (a) Oryx
and each of its Subsidiaries owns, or is licensed to use (in each case, free
and clear of any Liens), all Intellectual Property used in or necessary for
the conduct of its business as currently conducted; (b) the use of any
Intellectual Property by Oryx and its Subsidiaries does not infringe on or
otherwise violate the rights of any Person and is in accordance with any
applicable license pursuant to which Oryx or any Subsidiary acquired the
right to use any Intellectual Property; (c) to the knowledge of Oryx, no
Person is challenging, infringing on or otherwise violating any right of Oryx
or any of its Subsidiaries with respect to any Intellectual Property owned by
and/or licensed to Oryx or its Subsidiaries; and (d) neither Oryx nor any of
its Subsidiaries has received any written notice of any pending claim with
respect to any Intellectual Property used by Oryx and its Subsidiaries and to
its knowledge no Intellectual Property owned and/or licensed by Oryx or its
Subsidiaries is being used or enforced in a manner that would result in the
abandonment, cancellation or unenforceability of such Intellectual Property.
(l) Rights Agreement. The Board of Directors of
Oryx has approved an amendment to the Oryx Rights Agreement to the effect
that neither Xxxx-XxXxx nor any of its affiliates shall become an "Acquiring
Person" or an "Adverse Person", and that no "Shares Acquisition Date",
"Distribution Date" or "Triggering Event" (as such terms are defined in the
Oryx Rights Agreement) or any event otherwise specified in Section 11(a)(ii)
or 13 of the Rights Agreement will occur, by reason of the approval,
execution or delivery of this Agreement or the Oryx Stock Option Agreement or
the consummation of the Merger or the other transactions contemplated hereby
or thereby, and will cause the trustee under the Oryx Rights Agreement to
execute such amendment as soon as possible after the execution hereof.
(m) Brokers or Finders. No agent, broker,
investment banker, financial advisor or other firm or Person is or will be
entitled to any broker's or finder's fee or any other similar commission or
fee in connection with any of the transactions contemplated by this Agreement
or the Stock Option Agreements based upon arrangements made by or on behalf
of Oryx except Xxxxxxx, Sachs & Co. (the "Oryx Financial Advisor"), whose
fees and expenses will be paid by Oryx in accordance with Oryx's agreement
with such firm, a copy of which has been provided to Xxxx-XxXxx.
(n) Opinion of Oryx Financial Advisor. Oryx has
received the opinion of the Oryx Financial Advisor, dated the date of this
Agreement, to the effect that, as of such date, the Exchange Ratio is fair,
from a financial point of view, to the holders of Oryx Common Stock, a copy
of which opinion will be made available to Xxxx-XxXxx.
(o) Accounting Matters. Neither Oryx nor any of
its affiliates has taken or agreed to take any action that would prevent
Xxxx-XxXxx from accounting for the Merger as a "pooling of interests". At or
prior to the date hereof, Oryx has received a letter from its independent
public accountants addressed to Oryx, with a copy to Xxxx-XxXxx and Xxxx-
XxXxx'x independent public accountants, stating that Oryx qualifies as a
"combining company" in accordance with the criteria set forth in Opinion 16
of the Accounting Principles Board and accordingly is a poolable entity.
(p) Taxes. Each of Oryx and its Subsidiaries
has filed all Tax Returns required to have been filed (or extensions have
been duly obtained) and has paid all Taxes required to have been paid by it,
except where failure to file such Tax Returns or pay such Taxes would not
reasonably be expected to have a Material Adverse Effect on Oryx.
(q) Certain Contracts. As of the date hereof,
except as set forth in the Current Oryx SEC Reports, neither Oryx nor any of
its Subsidiaries is a party to or bound by (i) any "material contract" (as
such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or (ii)
any non-competition agreement or any other agreement or arrangement that
limits or otherwise restricts Oryx or any of its Subsidiaries or any of their
respective affiliates or any successor thereto or that would, after the
Effective Time, to the knowledge of Oryx, limit or restrict the Surviving
Corporation or any of its Subsidiaries or any of their respective affiliates
or any successor thereto, from engaging or competing in any line of business
or in any geographic area.
(r) Employee Benefits.
(i) Except as set forth in Section 3.2(r) of the
Oryx Disclosure Schedule (together, the "Oryx Plans"), Oryx has no material
Benefit Plans. Copies or descriptions of the Oryx Plans have been made
available to Xxxx-XxXxx.
(ii) Each Oryx Plan has been administered and is
in compliance with the terms of such plan and all applicable laws, rules and
regulations where the failure thereof would result in liability that would be
reasonably expected to have a Material Adverse Effect on Oryx.
(iii) Each Oryx Plan intended to be qualified has
received a favorable determination from the Internal Revenue Service and to
Oryx's knowledge, nothing has occurred since that would adversely affect such
qualification.
(iv) Except as would not be reasonably expected
to have a Material Adverse Effect on Oryx: (x) no "reportable event" (as such
term is used in section 4043 of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")) (other than those events for which the 30-day
notice has been waived pursuant to the regulations) is pending with respect
to any Oryx Plan, and (ii) no "accumulated funding deficiency" (as such term
is used in section 412 or 4971 of the Code) has occurred during the last 5
years with respect to any Oryx Plan.
(v) No litigation or administrative or other
proceeding involving any Oryx Plans has occurred or, to the Oryx's knowledge,
is threatened where an adverse determination would result in liability that
would be reasonably expected to have a Material Adverse Effect on Oryx.
(vi) Oryx has not contributed to any
"multiemployer plan" (within the meaning of section 3(37) of ERISA) and
neither Oryx nor any member of its Controlled Group has incurred any
withdrawal liability which remains unsatisfied in an amount which would
result in liability that has had or would be reasonably expected to have a
Material Adverse Effect on Oryx.
(vii) No Oryx Plan or multiemployer plan to which
the Oryx contributed has been terminated where such termination has resulted
in liability under Title IV of ERISA that has had or would be reasonably
expected to have a Material Adverse Effect on Oryx.
(s) Labor Matters. Neither Oryx nor any of its
Subsidiaries: (i) is a party to or otherwise bound by any collective
bargaining agreement, contract or other agreement or understanding with a
labor union or labor organization, nor is any such contract or agreement
presently being negotiated, nor is there, nor has there been in the last five
years, a representation question respecting any of the employees of Oryx or
its Subsidiaries, and, to the knowledge of Oryx, there are no campaigns being
conducted to solicit cards from employees of Oryx or its Subsidiaries to
authorize representation by any labor organization; (ii) is a party to, or
bound by, any consent decree with, or citation by, any governmental agency
relating to employees or employment practices which would reasonably be
expected to have a Material Adverse Effect on Oryx; or (iii) is the subject
of any proceeding asserting that it has committed an unfair labor practice or
is seeking to compel it to bargain with any labor union or labor organization
nor, as of the date of this Agreement, is there pending or, to the knowledge
of Oryx, threatened, any labor strike, dispute, walkout, work stoppage, slow-
down or lockout involving Oryx or any of its Subsidiaries which, with respect
to any event described in this clause (iii), would reasonably be expected to
have a Material Adverse Effect on Oryx.
(t) Ownership of Xxxx-XxXxx Common Stock.
Neither Oryx nor any of its Subsidiaries beneficially owns, directly or
indirectly, any Xxxx-XxXxx Common Stock other than pursuant to the Xxxx-XxXxx
Stock Option Agreement.
(u) Devon Stock. Neither Oryx nor any of its
Subsidiaries beneficially owns, directly or indirectly, or has any rights
with respect to the acquisition of beneficial ownership of, any common stock,
par value $0.10 per share, of Devon Energy Corporation (an Oklahoma
corporation) or any other securities having voting power under ordinary
circumstances with respect to election of directors of Devon Energy
Corporation.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 Covenants of Xxxx-XxXxx. During the period
from the date of this Agreement and continuing until the Effective Time,
Xxxx-XxXxx agrees as to itself and its Subsidiaries that (except as expressly
contemplated or permitted by this Agreement or the Xxxx-XxXxx Disclosure
Schedule or as required by a Governmental Entity of competent jurisdiction or
to the extent that Oryx shall otherwise consent in writing, which consent
shall not be unreasonably withheld or delayed):
(a) Ordinary Course.
(i) Xxxx-XxXxx and its Subsidiaries shall carry
on their respective businesses in the usual, regular and ordinary
course in all material respects, in substantially the same manner as
heretofore conducted, and shall use all reasonable efforts to
preserve intact their present lines of business, maintain their
rights and franchises and preserve their relationships with
customers, suppliers and others having business dealings with them to
the end that their ongoing businesses shall not be impaired in any
material respect at the Effective Time; provided, however, that no
action by Xxxx-XxXxx or its Subsidiaries with respect to matters
specifically addressed by any other provision of this Section 4.1
shall be deemed a breach of this Section 4.1(a)(i) unless such action
would constitute a breach of one or more of such other provisions.
(ii) Other than in connection with acquisitions
permitted by Section 4.1(e), Xxxx-XxXxx shall not, and shall not
permit any of its Subsidiaries to, (A) enter into any new material
line of business or (B) incur or commit to any capital expenditures
or any obligations or liabilities in connection therewith other than
capital expenditures and obligations or liabilities in connection
therewith incurred or committed to in the ordinary course of business
consistent with past practice.
(b) Dividends; Changes in Capital Stock. Xxxx-
XxXxx shall not, and shall not permit any of its Subsidiaries to, and
shall not propose to, (i) declare or pay any dividends on or make
other distributions in respect of any of its capital stock, except
(A) the declaration and payment of regular quarterly cash dividends
not in excess of $0.45 per share of Xxxx-XxXxx Common Stock with
usual record and payment dates for such dividends in accordance with
past dividend practice, and (B) for dividends by wholly owned
Subsidiaries of Xxxx-XxXxx, (ii) split, combine or reclassify any of
its capital stock or issue or authorize or propose the issuance of
any other securities in respect of, in lieu of or in substitution
for, shares of its capital stock, except for any such transaction by
a wholly owned Subsidiary of Xxxx-XxXxx which remains a wholly owned
Subsidiary after consummation of such transaction or (iii)
repurchase, redeem or otherwise acquire any shares of its capital
stock or any securities convertible into or exercisable for any
shares of its capital stock.
(c) Issuance of Securities. Xxxx-XxXxx shall
not, and shall not permit any of its Subsidiaries to, issue, deliver
or sell, or authorize or propose the issuance, delivery or sale of,
any shares of its capital stock of any class, any Xxxx-XxXxx Voting
Debt or any securities convertible into or exercisable for, or any
rights, warrants or options to acquire, any such shares or Xxxx-XxXxx
Voting Debt, or enter into or modify any agreement with respect to
any of the foregoing, other than (i) the issuance of Xxxx-XxXxx
Common Stock (and the associated Xxxx-XxXxx Rights) upon the exercise
of Xxxx-XxXxx Stock Options or in connection with other stock-based
benefit plans outstanding on the date hereof, in each case in
accordance with their present terms, or as otherwise approved by the
Xxxx-XxXxx Board of Directors in connection with Benefit Plans, (ii)
the granting of Xxxx-XxXxx Stock Options in the ordinary course of
business consistent with past practice or as otherwise approved by
the Xxxx-XxXxx Board of Directors, (iii) issuances by a wholly owned
Subsidiary of Xxxx-XxXxx of capital stock to such Subsidiary's
parent, Xxxx-XxXxx or another wholly owned Subsidiary of Xxxx-XxXxx,
or (iv) issuances in accordance with the Xxxx-XxXxx Rights Agreement.
(d) Governing Documents. Except to the extent
required to comply with its obligations hereunder, Xxxx-XxXxx shall
not amend or propose to so amend its certificate of incorporation or
by-laws.
(e) No Acquisitions. Other than acquisitions
for cash or debt (other than debt convertible into or exchangeable
for equity securities) principally in existing or related lines of
business of Xxxx-XxXxx which the Xxxx-XxXxx Board of Directors
determines to be in the best interests of Xxxx-XxXxx, Xxxx-XxXxx
shall not, and shall not permit any of its Subsidiaries to, acquire
or agree to acquire by merging or consolidating with, or by
purchasing a substantial equity interest in or a substantial portion
of the assets of, or by any other manner, any business or any
corporation, partnership, association or other business organization
or division thereof or otherwise acquire or agree to acquire any
assets (other than the acquisition of assets used in the operations
of the business of Xxxx-XxXxx and its Subsidiaries in the ordinary
course).
(f) No Dispositions. Other than as may be
required by or in conformance with law or regulation in order to
permit or facilitate the consummation of the transactions
contemplated hereby (subject to Section 5.3(a)), Xxxx-XxXxx shall
not, and shall not permit any of its Subsidiaries to, sell, lease,
encumber or otherwise dispose of, or agree to sell, lease, encumber
or otherwise dispose of, any of its assets (including capital stock
of Subsidiaries), other than dispositions in the ordinary course of
business consistent with past practice, and dispositions of minority
interests in joint ventures which the Xxxx-XxXxx Board of Directors
determines to be in the best interests of Xxxx-XxXxx.
(g) Investments; Indebtedness. Xxxx-XxXxx shall
not, and shall not permit any of its Subsidiaries to, other than in
connection with actions permitted by Section 4.1(e), (i) make any
loans, advances or capital contributions to, or investments in, any
other Person, other than (x) by Xxxx-XxXxx or a Subsidiary of Xxxx-
XxXxx to or in Xxxx-XxXxx or any wholly owned Subsidiary of Xxxx-
XxXxx, (y) pursuant to any contract or other legal obligation of
Xxxx-XxXxx or any of its Subsidiaries existing at the date of this
Agreement or (z) in the ordinary course of business consistent with
past practice or (ii) create, incur, assume or suffer to exist any
indebtedness, issuances of debt securities, guarantees, loans or
advances not in existence as of the date of this Agreement except
pursuant to the credit facilities, indentures and other arrangements
in existence on the date of this Agreement or in the ordinary course
of business consistent with past practice, in each case as such
credit facilities, indentures and other arrangements may be amended,
extended, modified, refunded, renewed or refinanced after the date of
this Agreement.
(h) Pooling; Tax-Free Qualification. Xxxx-XxXxx
shall use its reasonable best efforts not to, and shall use its
reasonable best efforts not to permit any of its Subsidiaries to,
take any action (including any action otherwise permitted by this
Section 4.1) that would prevent or impede the Merger from qualifying
as a "pooling of interests" for accounting purposes or as a
"reorganization" under Section 368 of the Code.
(i) Compensation. Other than as contemplated by
Section 4.1(c) or as otherwise approved by the Xxxx-XxXxx Board of
Directors, Xxxx-XxXxx shall not increase the amount or change the
nature of compensation of any director or executive officer except in
the ordinary course of business consistent with past practice or as
required by an existing agreement, make any increase in or commitment
to increase any employee benefits, issue any additional Xxxx-XxXxx
Stock Options, adopt or make any commitment to adopt any additional
employee benefit plan or make any contribution, other than regularly
scheduled contributions, to any Xxxx-XxXxx Benefit Plan.
(j) Accounting Methods; Income Tax Elections.
Xxxx-XxXxx shall not change its methods of accounting in effect at
December 31, 1997, except as required by changes in GAAP as concurred
in by Xxxx-XxXxx'x independent public accountants. Xxxx-XxXxx shall
not (i) change its fiscal year or (ii) make any material tax
election, other than in the ordinary course of business consistent
with past practice.
(k) Certain Agreements. Xxxx-XxXxx shall not,
and shall not permit any of its Subsidiaries to, enter into any
agreement, arrangement or commitment (i) to take any of the foregoing
prohibited actions or (ii) that limits or otherwise restricts Xxxx-
XxXxx or any of its Subsidiaries or any of their respective
affiliates or any successor thereto or that could, after the
Effective Time, limit or restrict Xxxx-XxXxx or any of its
Subsidiaries or any of their respective affiliates (including the
Surviving Corporation and its Subsidiaries) or any successor thereto,
from engaging or competing in any line of business or in any
geographic area.
(l) Rights Agreement. Xxxx-XxXxx shall not
amend, modify or waive any provision of the Xxxx-XxXxx Rights
Agreement, and shall not take any action to redeem the Xxxx-XxXxx
Rights or render the Xxxx-XxXxx Rights inapplicable to any
transaction (other than the transactions contemplated hereby and by
the Xxxx-XxXxx Stock Option Agreement).
4.2 Covenants of Oryx. During the period from
the date of this Agreement and continuing until the Effective Time, Oryx
agrees as to itself and its Subsidiaries that (except as expressly
contemplated or permitted by this Agreement or the Oryx Disclosure Schedule
or as required by a Governmental Entity of competent jurisdiction or to the
extent that Xxxx-XxXxx shall otherwise consent in writing, which consent
shall not be unreasonably withheld or delayed):
(a) Ordinary Course.
(i) Oryx and its Subsidiaries shall carry on
their respective businesses in the usual, regular and ordinary course
in all material respects, in substantially the same manner as
heretofore conducted, and shall use all reasonable efforts to
preserve intact their present lines of business, maintain their
rights and franchises and preserve their relationships with
customers, suppliers and others having business dealings with them to
the end that their ongoing businesses shall not be impaired in any
material respect at the Effective Time; provided, however, that no
action by Oryx or its Subsidiaries with respect to matters
specifically addressed by any other provision of this Section 4.2
shall be deemed a breach of this Section 4.2(a)(i) unless such action
would constitute a breach of one or more of such other provisions.
(ii) Oryx shall not, and shall not permit any of
its Subsidiaries to, (A) enter into any new material line of business
or (B) incur or commit to any capital expenditures or any obligations
or liabilities in connection therewith other than capital
expenditures and obligations or liabilities in connection therewith
incurred or committed to in the ordinary course of business
consistent with past practice.
(b) Dividends; Changes in Capital Stock. Oryx
shall not, and shall not permit any of its Subsidiaries to, and shall
not propose to, (i) declare or pay any dividends on or make other
distributions in respect of any of its capital stock, except for
dividends by wholly owned Subsidiaries of Oryx, (ii) split, combine
or reclassify any of its capital stock or issue or authorize or
propose the issuance of any other securities in respect of, in lieu
of or in substitution for, shares of its capital stock, except for
any such transaction by a wholly owned Subsidiary of Oryx which
remains a wholly owned Subsidiary after consummation of such
transaction, or (iii) repurchase, redeem or otherwise acquire any
shares of its capital stock or any securities convertible into or
exercisable for any shares of its capital stock.
(c) Issuance of Securities. Oryx shall not, and
shall not permit any of its Subsidiaries to, issue, deliver or sell,
or authorize or propose the issuance, delivery or sale of, any shares
of its capital stock of any class, any Oryx Voting Debt or any
securities convertible into or exercisable for, or any rights,
warrants or options to acquire, any such shares or Oryx Voting Debt,
or enter into or modify any agreement with respect to any of the
foregoing, other than (i) the issuance of Oryx Common Stock (and the
associated Oryx Rights) upon the exercise of Oryx Stock Options or in
connection with other stock-based benefits plans outstanding on the
date hereof, in each case in accordance with their present terms,
(ii) issuances by a wholly owned Subsidiary of Oryx of capital stock
to such Subsidiary's parent, Oryx or another wholly owned Subsidiary
of Oryx, (iii) issuances upon the conversion of any of the Oryx
Debentures in accordance with their terms, or (iv) issuances in
accordance with the Oryx Rights Agreement.
(d) Governing Documents. Except to the extent
required to comply with its obligations hereunder, Oryx shall not
amend or propose to so amend its certificate of incorporation or by-
laws.
(e) No Acquisitions. Oryx shall not, and shall
not permit any of its Subsidiaries to, acquire or agree to acquire by
merging or consolidating with, or by purchasing a substantial equity
interest in or a substantial portion of the assets of, or by any
other manner, any business or any corporation, partnership,
association or other business organization or division thereof or
otherwise acquire or agree to acquire any assets (other than the
acquisition of assets used in the operations of the business of Oryx
and its Subsidiaries in the ordinary course).
(f) No Dispositions. Other than as may be
required by or in conformance with law or regulation in order to
permit or facilitate the consummation of the transactions
contemplated hereby (subject to Section 5.3(a)), Oryx shall not, and
shall not permit any of its Subsidiaries to, sell, lease, encumber or
otherwise dispose of, or agree to sell, lease, encumber or otherwise
dispose of, any of its assets (including capital stock of
Subsidiaries of Oryx) other than dispositions in the ordinary course
of business consistent with past practice.
(g) Investments; Indebtedness. Oryx shall not,
and shall not permit any of its Subsidiaries to, (i) make any loans,
advances or capital contributions to, or investments in, any other
Person, other than (x) by Oryx or a Subsidiary of Oryx to or in Oryx
or any wholly owned Subsidiary of Oryx, (y) pursuant to any contract
or other legal obligation of Oryx or any of its Subsidiaries existing
at the date of this Agreement or (z) in the ordinary course of
business consistent with past practice or (ii) create, incur, assume
or suffer to exist any indebtedness, issuances of debt securities,
guarantees, loans or advances not in existence as of the date of this
Agreement except pursuant to the credit facilities, indentures and
other arrangements in existence on the date of this Agreement or in
the ordinary course of business consistent with past practice, in
each case as such credit facilities, indentures and other
arrangements may be amended, extended, modified, refunded, renewed or
refinanced after the date of this Agreement.
(h) Pooling; Tax-Free Qualification. Oryx shall
use its reasonable best efforts not to, and shall use its reasonable
best efforts not to permit any of its Subsidiaries to, take any
action (including any action otherwise permitted by this Section 4.2)
that would prevent or impede the Merger from qualifying as a "pooling
of interests" for accounting purposes or as a "reorganization" under
Section 368 of the Code.
(i) Compensation. Oryx shall not increase the
amount of compensation of any director or executive officer except in
the ordinary course of business consistent with past practice or as
required by an existing agreement, make any increase in or commitment
to increase any employee benefits, issue any additional Oryx Stock
Options, adopt or make any commitment to adopt any additional
employee benefit plan or make any contribution, other than regularly
scheduled contributions, to any Oryx Benefit Plan.
(j) Accounting Methods; Income Tax Elections.
Oryx shall not change its methods of accounting in effect at December
31, 1997, except as required by changes in GAAP as concurred in by
Oryx's independent public accountants. Oryx shall not (i) change its
fiscal year or (ii) make any material tax election, other than in the
ordinary course of business consistent with past practice.
(k) Certain Agreements. Oryx shall not, and
shall not permit any of its Subsidiaries to, enter into any
agreement, arrangement or commitment (i) to take any of the foregoing
prohibited actions or (ii) that limits or otherwise restricts Oryx or
any of its Subsidiaries or any of their respective affiliates or any
successor thereto, or that could, after the Effective Time, limit or
restrict Xxxx-XxXxx or any of its Subsidiaries or any of their
respective affiliates (including the Surviving Corporation and its
Subsidiaries) or any successor thereto, from engaging or competing in
any line of business or in any geographic area.
(l) Rights Agreement. Oryx shall not amend,
modify or waive any provision of the Oryx Rights Agreement, and shall
not take any action to redeem the Oryx Rights or render the Oryx
Rights inapplicable to any transaction (other than the transactions
contemplated hereby and by the Oryx Stock Option Agreement) or to
designate or change the "Ownership Limitation" (as defined in the
Oryx Rights Agreement) with respect to any Person.
4.3 Governmental Filings. Each party shall (a)
confer on a regular and frequent basis with the other and (b) report (to the
extent permitted by law or regulation or any applicable confidentiality
agreement) on operational matters. Oryx and Xxxx-XxXxx shall file all
reports required to be filed by each of them with the SEC and all other
Governmental Entities between the date of this Agreement and the Effective
Time and shall (to the extent permitted by law and regulation and any
applicable confidentiality agreement) deliver to the other party copies of
all such reports, announcements and publications promptly after the same are
filed.
4.4 Control of Other Party's Business. Nothing
contained in this Agreement shall give Oryx, directly or indirectly, the
right to control or direct Xxxx-XxXxx'x operations prior to the Effective
Time. Nothing contained in this Agreement shall give Xxxx-XxXxx, directly or
indirectly, the right to control or direct Oryx's operations prior to the
Effective Time. Prior to the Effective Time, each of Oryx and Xxxx-XxXxx
shall exercise, consistent with the terms and conditions of this Agreement,
complete control and supervision over its respective operations.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Preparation of Proxy Statement; Stockholders
Meetings.
(a) As promptly as reasonably practicable
following the date hereof, Xxxx-XxXxx and Oryx shall prepare and file with
the SEC proxy materials which shall constitute the Joint Proxy
Statement/Prospectus (such proxy statement/prospectus, and any amendments or
supplements thereto, the "Joint Proxy Statement/Prospectus") and Xxxx-XxXxx
shall prepare and file a registration statement on Form S-4 with respect to
the issuance of Company Common Stock in the Merger (the "Form S-4"). The
Joint Proxy Statement/Prospectus will be included in and will constitute a
part of the Form S-4 as Xxxx-XxXxx'x prospectus. The Form S-4 and the Joint
Proxy Statement/Prospectus shall comply as to form in all material respects
with the applicable provisions of the Securities Act and the Exchange Act and
the rules and regulations thereunder. Each of Xxxx-XxXxx and Oryx shall use
reasonable best efforts to have the Form S-4 declared effective by the SEC as
promptly as reasonably practicable after filing with the SEC and to keep the
Form S-4 effective as long as is necessary to consummate the Merger and the
other transactions contemplated hereby. Xxxx-XxXxx and Oryx shall, as
promptly as practicable after receipt thereof, provide the other party copies
of any written comments, and advise the other party of any oral comments,
with respect to the Joint Proxy Statement/Prospectus received from the SEC.
Xxxx-XxXxx will provide Oryx with a reasonable opportunity to review and
comment on any amendment or supplement to the Form S-4 prior to filing such
with the SEC, and will provide Oryx with a copy of all such filings made with
the SEC. Notwithstanding any other provision herein to the contrary, no
amendment or supplement (including by incorporation by reference) to the
Joint Proxy Statement/Prospectus or the Form S-4 shall be made without the
approval of both parties, which approval shall not be unreasonably withheld
or delayed; provided, that with respect to documents filed by a party which
are incorporated by reference in the Form S-4 or Joint Proxy
Statement/Prospectus, this right of approval shall apply only with respect to
information relating to the other party or its business, financial condition
or results of operations, or this Agreement, the Stock Option Agreements or
the transactions contemplated hereby or thereby. Xxxx-XxXxx will use
reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be
mailed to Xxxx-XxXxx stockholders, and Oryx will use reasonable best efforts
to cause the Joint Proxy Statement/Prospectus to be mailed to Oryx's
stockholders, in each case as promptly as practicable after the Form S-4 is
declared effective under the Securities Act. Xxxx-XxXxx shall also take any
action (other than qualifying to do business in any jurisdiction in which it
is not now so qualified or to file a general consent to service of process)
required to be taken under any applicable state securities laws in connection
with the issuance of shares of Company Common Stock in the Merger and Oryx
shall furnish all information concerning Oryx and the holders of Oryx Common
Stock as may be reasonably requested in connection with any such action.
Each party will advise the other party, promptly after it receives notice
thereof, of the time when the Form S-4 has become effective, the issuance of
any stop order, the suspension of the qualification of the Company Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Joint Proxy
Statement/Prospectus or the Form S-4. If at any time prior to the Effective
Time any information relating to Xxxx-XxXxx or Oryx, or any of their
respective affiliates, officers or directors, should be discovered by Xxxx-
XxXxx or Oryx which should be set forth in an amendment or supplement to any
of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such
documents would not include any misstatement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, the party which
discovers such information shall promptly notify the other party hereto and,
to the extent required by law, rule or regulation, an appropriate amendment
or supplement describing such information shall be promptly filed with the
SEC and disseminated to the stockholders of Xxxx-XxXxx and Oryx.
(b) Oryx shall, as promptly as reasonably
practicable following the execution of this Agreement, duly call, give notice
of, convene and hold a meeting of its stockholders (the "Oryx Stockholders
Meeting") (which meeting the parties intend to be held on the same date as
the Xxxx-XxXxx Stockholders Meeting and which shall be held no later than 45
days following the declaration of effectiveness of the Form S-4) for the
purpose of obtaining the Required Oryx Vote with respect to this Agreement
and the Reverse Split and the Merger (which Oryx shall seek to present as a
single, unitary proposal) and shall take all lawful action to solicit the
adoption of this Agreement and approval of the Reverse Split by the Required
Oryx Vote. Unless otherwise required by their fiduciary duties, the Board of
Directors of Oryx shall (i) recommend adoption of this Agreement and approval
of the Reverse Split by the stockholders of Oryx to the effect as set forth
in Section 3.2(f), and (ii) not withdraw, modify or materially qualify in any
manner adverse to Xxxx-XxXxx such recommendation or take any action or make
any statement in connection with the Oryx Stockholders Meeting materially
inconsistent with such recommendation (collectively, an "Adverse Change in
the Oryx Recommendation"); provided the foregoing shall not prohibit accurate
disclosure of factual information regarding the business, financial condition
or results of operations of Xxxx-XxXxx or Oryx or the fact that an
Acquisition Proposal (as defined in Section 5.4) has been made, the identity
of the party making such proposal or the material terms of such proposal to
the extent that Oryx determines that such disclosure is required under
applicable law (and no such disclosure shall constitute an "Adverse Change in
the Oryx Recommendation" hereunder). Unless this Agreement is terminated,
Oryx shall be required to take the actions specified in the first sentence of
this Section 5.1(b) whether or not the Oryx Board of Directors makes an
Adverse Change in the Oryx Recommendation after the date hereof.
(c) Xxxx-XxXxx shall, as promptly as reasonably
practicable following the execution of this Agreement, duly call, give notice
of, convene and hold a meeting of its stockholders (the "Xxxx-XxXxx
Stockholders Meeting") (which meeting the parties intend to be held on the
same date as the Oryx Stockholders Meeting and which shall be held no later
than 45 days following the declaration of effectiveness of the Form S-4) for
the purpose of obtaining the Required Xxxx-XxXxx Vote with respect to this
Agreement and the Merger (including the issuance of Company Common Stock
pursuant to the Merger) and shall take all lawful action to solicit the
adoption of this Agreement by the Required Xxxx-XxXxx Vote. Unless otherwise
required by their fiduciary duties, the Board of Directors of Xxxx-XxXxx
shall (i) recommend adoption of this Agreement by the stockholders of Xxxx-
XxXxx to the effect as set forth in Section 3.1(f), and (ii) not withdraw,
modify or materially qualify in any manner adverse to Oryx such
recommendation or take any action or make any statement in connection with
the Xxxx-XxXxx Stockholders Meeting materially inconsistent with such
recommendation (collectively, an "Adverse Change in the Xxxx-XxXxx
Recommendation"); provided the foregoing shall not prohibit accurate
disclosure of factual information regarding the business, financial condition
or results of operations of Xxxx-XxXxx or Oryx or the fact that an
Acquisition Proposal has been made, the identity of the party making such
proposal or the material terms of such proposal to the extent that Xxxx-XxXxx
determines that such disclosure is required under applicable law (and no such
disclosure shall constitute an "Adverse Change in the Xxxx-XxXxx
Recommendation" hereunder). Unless this Agreement is terminated, Xxxx-XxXxx
shall be required to take the actions specified in the first sentence of this
Section 5.1(c) whether or not the Xxxx-XxXxx Board of Directors makes an
Adverse Change in the Xxxx-XxXxx Recommendation after the date hereof.
(d) Nothing in this Section 5.1 shall permit
Xxxx-XxXxx or Oryx to terminate this Agreement or affect any other obligation
of Xxxx-XxXxx or Oryx under this Agreement.
5.2 Access to Information. Upon reasonable
notice, each party shall (and shall cause its Subsidiaries to) afford to the
officers, employees, accountants, counsel, financial advisors and other
representatives of the other party reasonable access during normal business
hours, during the period prior to the Effective Time, to all its properties,
books, contracts, commitments, records, officers and employees and, during
such period, such party shall (and shall cause its Subsidiaries to) furnish
promptly to the other party (a) a copy of each material report, schedule,
registration statement and other document filed, published, announced or
received by it during such period pursuant to the requirements of federal or
state securities laws, as applicable (other than documents which such party
is not permitted to disclose under applicable law, rule or regulation), and
(b) consistent with its legal obligations, all other information concerning
it and its business, properties and personnel as such other party may
reasonably request; provided, however, that either party may restrict the
foregoing access to the extent that any law, rule or regulation of any
Governmental Entity applicable to such party or any confidentiality or
similar agreement requires such party or its Subsidiaries to restrict access
to any properties or information. The parties will hold any such information
in confidence to the extent required by, and in accordance with, the
provisions of the letters dated September 18, 1998 between Oryx and Xxxx-
XxXxx (the "Confidentiality Agreements"). Any investigation by Xxxx-XxXxx or
Oryx or any of their representatives shall not affect the representations and
warranties of Oryx or Xxxx-XxXxx, as the case may be.
5.3 Reasonable Best Efforts.
(a) Subject to the terms and conditions of this
Agreement, each party will use its reasonable best efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the Merger and the other transactions contemplated by this
Agreement as soon as practicable after the date hereof, including (i)
preparing and filing as promptly as practicable all documentation to effect
all necessary applications, notices, petitions, filings, tax ruling requests
and other documents and to obtain as promptly as practicable all consents,
waivers, licenses, orders, registrations, approvals, permits, tax rulings and
authorizations necessary or advisable to be obtained from any third party
and/or any Governmental Entity in order to consummate the Merger or any of
the other transactions contemplated by this Agreement and (ii) taking all
reasonable steps as may be necessary to obtain all such consents, waivers,
licenses, registrations, permits, authorizations, tax rulings, orders and
approvals. In furtherance and not in limitation of the foregoing, each party
hereto agrees to make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act and any other Regulatory Law (as defined below) with
respect to the transactions contemplated hereby as promptly as practicable
after the date hereof and to supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the
HSR Act and any other Regulatory Law and to use its reasonable best efforts
to take all other actions necessary to cause the expiration or termination of
the applicable waiting periods under the HSR Act as soon as practicable.
Nothing in this Section 5.3(a) shall require any of Xxxx-XxXxx and its
Subsidiaries or Oryx and its Subsidiaries to sell, hold separate or otherwise
dispose of or conduct their business in a specified manner, or agree to sell,
hold separate or otherwise dispose of or conduct their business in a
specified manner, or permit the sale, holding separate or other disposition
of, any assets of Xxxx-XxXxx, Oryx or their respective Subsidiaries or the
conduct of their business in a specified manner, whether as a condition to
obtaining any approval from a Governmental Entity or any other Person or for
any other reason, if such sale, holding separate or other disposition or the
conduct of their business in a specified manner is not conditioned on the
Closing or would reasonably be expected to have a Material Adverse Effect on
the Surviving Corporation and its Subsidiaries, taken together, after giving
effect to the Merger.
(b) Each of Xxxx-XxXxx and Oryx shall, in
connection with the efforts referenced in Section 5.3(a) to obtain all
requisite approvals and authorizations for the transactions contemplated by
this Agreement under the HSR Act or any other Regulatory Law, use its
reasonable best efforts to (i) cooperate in all respects with each other in
connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding initiated by a
private party, (ii) promptly inform the other party of any communication
received by such party from, or given by such party to, the Antitrust
Division of the Department of Justice (the "DOJ") or the Federal Trade
Commission (the "FTC") or any other Governmental Entity and of any material
communication received or given in connection with any proceeding by a
private party, in each case regarding any of the transactions contemplated
hereby, and (iii) permit the other party to review any communication given by
it to, and consult with each other in advance of any meeting or conference
with, the DOJ, the FTC or any such other Governmental Entity or, in
connection with any proceeding by a private party, with any other Person, and
to the extent permitted by the DOJ, the FTC or such other applicable
Governmental Entity or other Person, give the other party the opportunity to
attend and participate in such meetings and conferences. For purposes of
this Agreement, "Regulatory Law" means the Xxxxxxx Act, as amended, the
Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as
amended, and all other federal, state and foreign, if any, statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines and other
laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade or
lessening of competition.
(c) Subject to the terms and conditions of this
Agreement, in furtherance and not in limitation of the covenants of the
parties contained in Sections 5.3(a) and 5.3(b), if any administrative or
judicial action or proceeding, including any proceeding by a private party,
is instituted (or threatened to be instituted) challenging any transaction
contemplated by this Agreement as violative of any Regulatory Law, each of
Xxxx-XxXxx and Oryx shall cooperate in all respects with each other and use
its respective reasonable best efforts to contest and resist any such action
or proceeding and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement.
(d) Notwithstanding the foregoing or any other
provision of this Agreement, nothing in Section 5.1 or 5.2 or this Section
5.3 shall limit a party's right to terminate this Agreement pursuant to
Article VII or to take any actions specifically permitted pursuant to Section
5.4.
(e) If any objections are asserted with respect
to the transactions contemplated hereby under any Regulatory Law or if any
suit is instituted by any Governmental Entity or any private party
challenging any of the transactions contemplated hereby as violative of any
Regulatory Law, each of Xxxx-XxXxx and Oryx shall use its reasonable best
efforts to resolve any such objections or challenge as such Governmental
Entity or private party may have to such transactions under such Regulatory
Law so as to permit consummation of the transactions contemplated by this
Agreement.
5.4 Acquisition Proposals. Without limitation
on any of such party's other obligations under this Agreement (including
under Article IV hereof), and except with respect to a transaction
specifically permitted under Section 4.1(e) or (f), each of Xxxx-XxXxx and
Oryx agrees that neither it nor any of its Subsidiaries nor any of its or
their officers, employees, directors, agents or representatives (including
any investment banker, attorney or accountant retained by it or any of its
Subsidiaries) will, directly or indirectly, initiate, solicit or knowingly
facilitate (including by way of furnishing information) any inquiries or the
making of any proposal or offer with respect to a merger, reorganization,
share exchange, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving it or any of its
Subsidiaries, or any purchase or sale of the assets (including stock of
Subsidiaries) of it or any of its Subsidiaries, taken as a whole, having an
aggregate value equal to 10% or more of the consolidated asset value of such
party, or any purchase or sale of, or tender or exchange offer for, 10% or
more of the equity securities of such party (any such proposal or offer
(other than a proposal or offer made by the other party or an affiliate
thereof) being hereinafter referred to as an "Acquisition Proposal"). Each
of Xxxx-XxXxx and Oryx further agrees that neither it nor any of its
Subsidiaries nor any of their officers, employees, directors, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) will, directly or indirectly, have
any discussion with or provide any confidential information or data to any
Person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal, or knowingly facilitate any effort or
attempt to make or implement an Acquisition Proposal or accept an Acquisition
Proposal. Notwithstanding anything herein to the contrary, each of Xxxx-
XxXxx and Oryx or its respective Board of Directors shall be permitted,
subject to Sections 7.1(f) and 7.2: (A) to the extent applicable, to comply
with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard
to an Acquisition Proposal; (B) to the extent required by its fiduciary
duties, to approve or recommend or resolve to approve or recommend an
Acquisition Proposal or otherwise make an Adverse Change in the Xxxx-XxXxx
Recommendation or an Adverse Change in the Oryx Recommendation, as the case
may be; and (C) engage in any discussions or negotiations with, or provide
any information to, any Person in response to an unsolicited bona fide
written Acquisition Proposal by any such Person, if and only to the extent
that (i) the approval of its stockholders referred to in Section 3.1(g) or
3.2(g), as the case may be, shall not have been obtained, (ii) its Board of
Directors determines that such Acquisition Proposal is a Superior Proposal
(as defined in Section 8.11), and (iii) prior to providing any information or
data to any Person in connection with an Acquisition Proposal by any such
Person, its Board of Directors receives from such Person an executed
confidentiality agreement containing confidentiality terms at least as
favorable to it as those contained in the relevant Confidentiality Agreement.
Each of Xxxx-XxXxx and Oryx agrees that it will notify the other party
promptly of any inquiries, proposals or offers received by, any such
information requested from, or any such discussions or negotiations sought to
be initiated or continued with, it or any of its representatives with respect
to, or which could reasonably be expected to lead to, an Acquisition Proposal
indicating, in connection with such notice, the name of such Person and the
material terms, conditions and other aspects of any such inquiries,
proposals, offers, requests, discussions or negotiations, including promptly
forwarding copies of any written Acquisition Proposals, and promptly keep the
other party informed of the status and terms of any such proposals or offers
and the status and terms of any such discussions or negotiations. Each of
Xxxx-XxXxx and Oryx agrees that it will, and will cause its officers,
employees, directors, agents and representatives to, immediately cease any
activities, discussions or negotiations existing as of the date of this
Agreement with any parties conducted heretofore with respect to any
Acquisition Proposal. Nothing in this Section 5.4 shall permit Xxxx-XxXxx or
Oryx to terminate this Agreement or affect any other obligation of Xxxx-XxXxx
or Oryx under this Agreement. No action taken in respect of a Superior
Proposal which is specifically permitted pursuant to this Section 5.4,
including without limitation any change in recommendation of the Board of
Directors of either Xxxx-XxXxx or Oryx and the public announcement thereof,
will constitute a breach of any other provision hereof.
5.5 Employee Benefits Matters. (a) Except as
otherwise provided in this Section 5.5, (i) each of the Xxxx-XxXxx Plans and
Oryx Plans and other employment arrangements in effect on the date hereof
(or as amended or established in accordance with or as permitted by this
Agreement) shall be maintained in effect by the Surviving Corporation from
and after the Effective Time with respect to the employees, former employees,
directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx
and its Subsidiaries, respectively, who are covered by such Benefit Plans
immediately prior to the Effective Time, and the Surviving Corporation shall
assume as of the Effective Time each Oryx Plan maintained by Oryx immediately
prior to the Effective Time and perform such Benefit Plan in the same manner
and to the same extent that Oryx would be required to perform thereunder, and
(ii) except as may be expressly provided in a valid written waiver
voluntarily signed by an affected employee, from and after the Effective Time
the Surviving Corporation will honor all Oryx Plans, including all
employment, change-in-control, severance, termination, consulting and
unfunded retirement or benefit agreements (including any obligations arising
from the Merger constituting a "change of control" or "corporate change"
thereunder, as applicable), in accordance with the terms thereof, without
offset, deduction, counterclaim, interruption or deferment (other than
offsets, deductions, counterclaims, interruptions or deferments (x) permitted
by the applicable Oryx Plan, (y) to comply with income or payroll tax
withholding obligations, or (z) under other applicable law); provided,
however, that, except as provided under applicable law, nothing contained in
this Section 5.5(a) shall limit the Surviving Corporation from exercising any
reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any
other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or
which the Surviving Corporation has after the Effective Time, to amend,
modify, suspend, revoke or terminate any such Benefit Plan. Without limiting
the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall
receive credit for purposes of eligibility to participate, vesting and
eligibility to receive benefits (such as higher rates of matching
contributions for service after the Effective Time and eligibility for early
retirement) under any Benefit Plan of the Surviving Corporation or any of its
Subsidiaries or affiliates for service credited for the corresponding purpose
under such Benefit Plan made available to such participant, but not for
purposes of benefit accrual under any defined benefit pension plan unless the
participant's accrued benefit liability related to such service is
transferred to such defined benefit pension plan; provided, however, that
such crediting of service shall not operate to cause any such Benefit Plan to
fail to comply with the applicable provisions of the Code and ERISA, and (ii)
with respect to any group health Benefit Plan of the Surviving Corporation or
any of its Subsidiaries or affiliates made available to Oryx employees or
Xxxx-XxXxx employees on or after the Effective Time, the Surviving
Corporation will cause such Benefit Plan to provide credit for any co-
payments or deductibles by such employees for the remainder of the coverage
period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx
Plan, as the case may be, and to waive all pre-existing condition exclusions
and waiting periods that would not have applied to such employees under the
applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability
of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and
after the date hereof to develop appropriate employee benefit plans, programs
and arrangements, including but not limited to, executive and incentive
compensation, stock option and supplemental executive retirement plans, for
employees and directors of the Surviving Corporation and its Subsidiaries
from and after the Effective Time. However, no provision contained in this
Section 5.5 shall be deemed to constitute an employment contract between the
Surviving Corporation and, or otherwise confer any rights upon, any
individual, or constitute a waiver of the Surviving Corporation's right to
amend, modify, limit or restrict the employment of, or to discharge, any
employee at any time, with or without cause.
(b) During the period from the Effective Time until
December 31, 1999, the Surviving Corporation shall maintain or cause to be
maintained Benefit Plans for the benefit of employees, former employees,
directors and former directors of Oryx and its Subsidiaries providing
benefits that, in the aggregate, are substantially comparable to the benefits
provided under the Oryx Plans that are in effect on the date hereof;
provided, however, that (i) any Oryx Plans which are defined benefit pension
plans shall be maintained without amendment through December 31, 1999 (other
than amendments required by law) and (ii) except as aforesaid or as provided
under applicable law, nothing herein contained shall limit the Surviving
Corporation from exercising any reserved right contained in any particular
Benefit Plan or any other right which Oryx had prior to the Effective Time,
or which the Surviving Corporation has after the Effective Time, to amend,
modify, suspend, revoke or terminate any such Benefit Plan. During the
period from the Effective Time until December 31, 1999, the Surviving
Corporation will not terminate the employment of any individual who was an
employee of Oryx immediately prior to the Effective Time without providing a
minimum of two weeks' prior written notice to such employee, during which
notice period the individual will be treated as an employee of the Surviving
Corporation for purposes of all Benefit Plans.
(c) The foregoing provisions of this Section 5.5
shall not apply with respect to any employees or former employees covered by
any collective bargaining agreements.
(d) With respect to Benefit Plans under which Oryx
Common Stock is required to be used for purposes of the payment of benefits,
grant of awards or exercise of options (other than Oryx Stock Option Plans)
(each, an "Oryx Stock Plan"), (i) Oryx shall take such action as may be
necessary so that, after the Effective Time, such Oryx Stock Plan shall
provide for the issuance or purchase in the open market only of Company
Common Stock rather than Oryx Common Stock and otherwise to amend such Oryx
Stock Plans to reflect this Agreement, the Reverse Split, the Exchange Ratio
and the Merger, and (ii) the Surviving Corporation shall (x) reserve for
issuance under such Oryx Stock Plan or otherwise provide a sufficient number
of shares of Company Common Stock for delivery upon payment of benefits,
grants of awards or exercise of options under such Oryx Stock Plan, (y) as
soon as practicable after the Effective Time, file or amend one or more
registration statements under the Securities Act with respect to the shares
of Company Common Stock subject to such Oryx Stock Plan to the extent such
filing or amendment is required under applicable law and use its best efforts
to maintain the effectiveness of such registration statement(s) (and the
current status of the prospectuses contained therein or related thereto) so
long as such benefits, grants or awards remain payable or such options remain
outstanding, as the case may be and (z) cause such shares of Company Common
Stock subject to such Oryx Stock Plan to be listed for trading on the NYSE.
Unless otherwise agreed to by the parties, Oryx shall use its reasonable best
efforts to obtain any shareholder approvals that may be necessary for the
deduction of any compensation payable under any Oryx Stock Plan or other
compensation arrangement.
(e) Prior to the Effective Time, each of Xxxx-XxXxx
and Oryx will take the actions set forth in Exhibit 5.5(e) with respect to
its Benefit Plans. No such action will constitute a breach of any other
provision hereof.
5.6 Fees and Expenses. Whether or not the
Merger is consummated, all Expenses (as defined below) incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such Expenses, except (a) if the Merger is consummated,
the Surviving Corporation shall pay, or cause to be paid, any and all
property or transfer taxes imposed on Oryx or its Subsidiaries and (b) the
SEC filing fee and printer's fees incurred in connection with the filing,
printing and mailing of the Joint Proxy Statement/Prospectus, which shall be
shared equally by Xxxx-XxXxx and Oryx, and (c) if applicable, as provided in
Section 7.2. As used in this Agreement, "Expenses" includes all out-of-
pocket expenses (including, without limitation, all fees and expenses of
counsel, accountants, investment bankers, experts and consultants to a party
hereto and its affiliates) incurred by a party or on its behalf in connection
with or related to the authorization, preparation, negotiation, execution and
performance of this Agreement, the Stock Option Agreements and the
transactions contemplated hereby and thereby, including the preparation,
printing, filing and mailing of the Joint Proxy Statement/Prospectus and the
solicitation of stockholder approvals and all other matters related to the
transactions contemplated hereby.
5.7 Directors' and Officers' Indemnification and
Insurance.
(a) The Surviving Corporation shall (i) indemnify
and hold harmless, and provide advancement of expenses to, all past and
present directors, officers and employees of Xxxx-XxXxx, Oryx and their
respective Subsidiaries to the same extent such persons are indemnified or
have the right to advancement of expenses as of the date of this Agreement by
Xxxx-XxXxx, Oryx or their respective Subsidiaries pursuant to Xxxx-XxXxx'x,
Oryx's or such Subsidiary's certificate of incorporation, by-laws or other
constituent documents and indemnification agreements, if any, in existence on
the date hereof with any such directors, officers and employees for acts or
omissions occurring at or prior to the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby); and (ii) cause to be
maintained for a period of six years after the Effective Time the current
policies of directors' and officers' liability insurance and fiduciary
liability insurance maintained by Xxxx-XxXxx, Oryx or their respective
Subsidiaries (provided that the Surviving Corporation (or any successor) may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, no less
advantageous to the insured) with respect to claims arising from facts or
events that occurred on or before the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby); provided, however,
that in no event shall the Surviving Corporation be required to expend in any
one year an amount in excess of 200% of the annual premiums currently paid by
Xxxx-XxXxx and Oryx for such insurance; and, provided, further, that if the
annual premiums of such insurance coverage exceed such amount, the Surviving
Corporation shall be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount. In addition, from and after
the Effective Time, directors and officers of Oryx who become directors or
officers of the Surviving Corporation will be entitled to the same indemnity
rights and protections as are afforded to the directors and officers of the
Surviving Corporation.
(b) The provisions of this Section 5.7 (i) are
intended to be for the benefit of, and will be enforceable by, each
indemnified party, his or her heirs and his or her representatives and (ii)
are in addition to, and not in substitution for, any other rights to
indemnification or contribution that any such person may have by contract or
otherwise.
5.8 Public Announcements. Xxxx-XxXxx and Oryx
shall use reasonable best efforts to develop a joint communications plan and
each party shall use reasonable best efforts (i) to ensure that all press
releases and other public statements with respect to this Agreement, the
Stock Option Agreements or the transactions contemplated hereby or thereby
shall be consistent with such joint communications plan, and (ii) unless
otherwise required by applicable law or by obligations pursuant to any
listing agreement with or rules of any securities exchange, to consult with
each other and provide each other a reasonable opportunity to review and
comment before issuing any press release or otherwise making any public
statement with respect to this Agreement, the Stock Option Agreements or the
transactions contemplated hereby or thereby. In addition to the foregoing,
except to the extent disclosed in or consistent with the Joint Proxy
Statement/Prospectus in accordance with the provisions of Section 5.1,
neither Xxxx-XxXxx nor Oryx shall issue any press release or otherwise make
any public statement or disclosure concerning the other party or the other
party's business, financial condition or results of operations without the
consent of the other party, which consent shall not be unreasonably withheld
or delayed.
5.9 Accountant's Letters. (a) Xxxx-XxXxx shall
use reasonable best efforts to cause to be delivered to Oryx two letters from
Xxxx-XxXxx'x independent public accountants, one dated the date on which the
Form S-4 shall become effective and one dated the Closing Date, each
addressed to Xxxx-XxXxx and Oryx, in form and substance reasonably
satisfactory to Oryx and customary in scope and substance for comfort letters
delivered by independent public accountants in connection with registration
statements similar to the Form S-4. Xxxx-XxXxx shall use reasonable best
efforts to cause to be delivered to Oryx a letter from Xxxx-XxXxx'x
independent accountants dated as of the date the Form S-4 is declared
effective and as of the Closing Date, stating that accounting for the Merger
as a pooling of interests under Opinion 16 of the Accounting Principles Board
and applicable SEC rules and regulations is appropriate if the Merger is
closed and consummated as contemplated by this Agreement.
(b) Oryx shall use reasonable best efforts to cause
to be delivered to Xxxx-XxXxx two letters from Oryx's independent public
accountants, one dated the date on which the Form S-4 shall become effective
and one dated the Closing Date, each addressed to Oryx and Xxxx-XxXxx, in
form and substance reasonably satisfactory to Xxxx-XxXxx and customary in
scope and substance for comfort letters delivered by independent public
accountants in connection with registration statements similar to the Form S-
4. Oryx shall use reasonable best efforts to cause to be delivered to Xxxx-
XxXxx a letter from Oryx's independent public accountants, addressed to Oryx
and Xxxx-XxXxx, dated as of the date the Form S-4 is declared effective and
as of the Closing Date, stating that stating that Oryx qualifies as a
"combining company" in accordance with the criteria set forth in Opinion 16
of the Accounting Principles Board and accordingly is a poolable entity.
(c) Each of Xxxx-XxXxx and Oryx shall use
reasonable best efforts to cause the transactions contemplated by this
Agreement, including the Merger, to be accounted for as a pooling of
interests under Opinion 16 of the Accounting Principles Board and applicable
SEC rules and regulations, and such accounting treatment to be accepted by
the SEC.
5.10 Listing of Shares of Company Common Stock.
Xxxx-XxXxx shall use its reasonable best efforts to cause the shares of
Company Common Stock to be issued in the Merger and the shares of Company
Common Stock to be reserved for issuance upon exercise of the Oryx Stock
Options and conversion of the Oryx Debentures to be approved for listing on
the NYSE, subject to official notice of issuance, prior to the Closing Date.
5.11 Affiliates. (a) Not less than 45 days
prior to the Effective Time, Oryx shall deliver to Xxxx-XxXxx a letter
identifying all persons who, in the opinion of Oryx, may be deemed at the
time this Agreement is submitted for adoption by the stockholders of Oryx,
"affiliates" of Oryx for purposes of Rule 145 under the Securities Act or for
purposes of qualifying the Merger for pooling of interests accounting
treatment under Opinion 16 of the Accounting Principles Board and applicable
SEC rules and regulations, and such list shall be updated as necessary to
reflect changes from the date thereof. Oryx shall use reasonable best
efforts to cause each person identified on such list to deliver to Xxxx-
XxXxx, not less than 30 days prior to the Effective Time, a written agreement
substantially in the form attached as Exhibit 5.11 hereto (an "Affiliate
Agreement"). Not less than 45 days prior to the Effective Time, Xxxx-XxXxx
shall deliver to Oryx a letter identifying all persons who, in the opinion of
Xxxx-XxXxx, may be deemed "affiliates" of Xxxx-XxXxx for purposes of
qualifying the Merger for pooling of interests accounting treatment under
Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations, and such list shall be updated as necessary to reflect changes
from the date hereof. Xxxx-XxXxx shall use reasonable best efforts to cause
each person identified on such list to deliver to Oryx not less than 30 days
prior to the Effective Time, a written agreement including the substance of
paragraphs (C), (D) and (E) of Exhibit 5.11 hereto.
(b) The Surviving Corporation shall use its
reasonable best efforts to publish no later than 90 days after the end of the
first month after the Effective Time in which there are at least 30 days of
post-Merger combined operations (which month may be the month in which the
Effective Time occurs), combined sales and net income figures as contemplated
by and in accordance with the terms of SEC Accounting Series Release No. 135.
5.12 Oryx Partnership Name. Prior to the
Effective Time, if Xxxx-XxXxx so requests, Oryx shall take all actions
necessary to cause the name of the Oryx Partnership to be changed to "Xxxx-
XxXxx Partners, L.P.", or such other name as shall be agreed by Xxxx-XxXxx
and Oryx, upon the Effective Time.
5.13 Reverse Stock Split. Prior to the Effective
Time, Oryx shall have taken all necessary action to effect the Reverse Split
as contemplated hereby immediately prior to the Effective Time, including
taking all necessary action pursuant to Section 15.05 of the indenture under
which the Oryx Debentures were issued to adjust the conversion rate for the
Oryx Debentures upon and following the Reverse Split to reflect the Exchange
Ratio.
5.14 Transition Management.
(a) As soon as practicable after the date of this
Agreement, the parties shall create a special transition management task
force (the "Task Force"), which shall be comprised of Xxxx X. Xxxxxxx, Xxxxxx
X. Xxxxxx and Xxx X. XxXxxxxx. The Task Force shall examine various
alternatives regarding the manner in which to best organize the business of
the Surviving Corporation after the Effective Time.
(b) As soon as practicable after the date of this
Agreement, the Task Force will develop a plan (the "Plan") with respect to
the communications with the employees of Xxxx-XxXxx and Oryx and their
respective Subsidiaries regarding the transactions contemplated by this
Agreement. Notwithstanding any other provision of this Agreement, prior to
the Effective Time, neither Xxxx-XxXxx nor Oryx will contact or communicate
with any employee of the other party or its Subsidiaries with respect to the
transactions contemplated by this Agreement, unless pursuant to the Plan or
in accordance with the authorization of the Task Force. In addition, except
pursuant to the Plan, neither Xxxx-XxXxx nor Oryx will have any communication
or contact with any employee of the other party or its Subsidiaries
concerning, relating to or in any way bearing upon any closing or relocation
of or reduction in size, staff or function of any present facility of the
other party. The Plan will address such topics as the identity of senior
management of the Surviving Corporation (other than as provided elsewhere
herein), integration of Xxxx-XxXxx and Oryx, retention bonuses, short- and
long-term plans for the corporate headquarters, group offices, payroll and
benefits administration. Xxxx-XxXxx and Oryx will cooperate and provide all
needed notices under the Worker Adjustment and Retraining Notification Act
and its regulations.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to
Effect the Merger. The respective obligations of Oryx and Xxxx-XxXxx to
effect the Merger are subject to the satisfaction or waiver on or prior to
the Closing Date of the following conditions:
(a) Stockholder Approval. (i) Oryx shall have
obtained the Required Oryx Vote in connection with the approval of
the Reverse Split and the adoption of this Agreement by the
stockholders of Oryx and (ii) Xxxx-XxXxx shall have obtained the
Required Xxxx-XxXxx Vote in connection with the adoption of this
Agreement by the stockholders of Xxxx-XxXxx.
(b) No Injunctions or Restraints, Illegality.
No law, rule or regulation shall have been adopted or promulgated,
and no temporary restraining order, preliminary or permanent
injunction or other order, decree or ruling issued by a court or
other Governmental Entity of competent jurisdiction shall be in
effect having the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger.
(c) HSR Act. The waiting period (and any
extension thereof) applicable to the Merger under the HSR Act shall
have been terminated or shall have expired.
(d) Governmental and Regulatory Approvals.
Other than the filing provided for under Section 1.3 and filings
pursuant to the HSR Act (which are addressed in Section 6.1(c)), all
consents, approvals and actions of, filings with and notices to any
Governmental Entity required of Xxxx-XxXxx, Oryx or any of their
Subsidiaries to consummate the Merger and the other transactions
contemplated hereby, the failure of which to be obtained or taken
would reasonably be expected to have a Material Adverse Effect on the
Surviving Corporation and its Subsidiaries, taken together after
giving effect to the Merger, shall have been obtained (for purposes
of this Section 6.1(d), the failure to obtain or make any such
consents, approvals, actions, filings or notices required under state
or local Environmental Laws with respect to Oryx Permits or Xxxx-XxXxx
Permits shall not be deemed to have a Material Adverse Effect on the
Surviving Corporation).
(e) NYSE Listing. The shares of Company Common
Stock to be issued in the Merger and such other shares to be reserved
for issuance in connection with the Merger shall have been approved
for listing on the NYSE, subject to official notice of issuance.
(f) Effectiveness of the Form S-4. The Form S-4
shall have been declared effective by the SEC under the Securities
Act. No stop order suspending the effectiveness of the Form S-4
shall have been issued by the SEC and no proceedings for that purpose
shall have been initiated or threatened by the SEC.
(g) Pooling. Oryx shall have received and
delivered to Xxxx-XxXxx and Xxxx-XxXxx'x independent public
accountants letters from its independent public accountants, dated as
of the date the Form S-4 is declared effective and as of the Closing
Date, stating that Oryx qualifies as a "combining company" in
accordance with the criteria set forth in Opinion 16 of the
Accounting Principles Board and accordingly is a poolable entity.
Xxxx-XxXxx shall have received and delivered to Oryx letters from its
independent public accountants, dated as of the date the Form S-4 is
declared effective and as of the Closing Date, stating that
accounting for the Merger as a pooling of interests under Opinion 16
of the Accounting Principles Board and applicable SEC rules and
regulations is appropriate if the Merger is closed and consummated as
contemplated by this Agreement.
(h) Reverse Split. The Reverse Split shall have
been effected on the terms contemplated hereby immediately prior to
the Effective Time.
6.2 Additional Conditions to Obligations of
Xxxx-XxXxx. The obligations of Xxxx-XxXxx to effect the Merger are subject
to the satisfaction of, or waiver by Xxxx-XxXxx, on or prior to the Closing
Date of the following additional conditions:
(a) Representations and Warranties. Each of the
representations and warranties of Oryx set forth in this Agreement
that is qualified as to Material Adverse Effect shall be true and
correct, and each of the representations and warranties of Oryx set
forth in this Agreement that is not so qualified shall be true and
correct in all material respects, in each case as of the date of this
Agreement and as of the Closing Date as though made on and as of the
Closing Date (except to the extent in either case that such
representations and warranties speak as of another date, in which
case they shall be so true and correct as of such date), and Xxxx-
XxXxx shall have received a certificate of the chief executive
officer and the chief financial officer of Oryx to such effect.
(b) Performance of Obligations of Oryx. Oryx
shall have performed or complied in all material respects with all
agreements and covenants required to be performed by it under this
Agreement at or prior to the Closing Date, and Xxxx-XxXxx shall have
received a certificate of the chief executive officer and the chief
financial officer of Oryx to such effect.
(c) Tax Opinion. Xxxx-XxXxx shall have received
from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to Xxxx-XxXxx, on or before
the Form S-4 shall become effective and, subsequently, on the Closing
Date, a written opinion dated as of such dates, based on appropriate
representations of Xxxx-XxXxx and Oryx, to the effect that (i) the
Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code and
(ii) Xxxx-XxXxx and Oryx will each be a party to the reorganization
within the meaning of Section 368(b) of the Code.
(d) Rights Agreement. No "Shares Acquisition
Date", "Distribution Date" or "Triggering Event" shall have occurred
pursuant to and as defined in the Oryx Rights Agreement.
6.3 Additional Conditions to Obligations of
Oryx. The obligations of Oryx to effect the Merger are subject to the
satisfaction of, or waiver by Oryx, on or prior to the Closing Date of the
following additional conditions:
(a) Representations and Warranties. Each of the
representations and warranties of Xxxx-XxXxx set forth in this
Agreement that is qualified as to Material Adverse Effect shall be
true and correct, and each of the representations and warranties of
Xxxx-XxXxx set forth in this Agreement that is not so qualified shall
be true and correct in all material respects, in each case as of the
date of this Agreement and as of the Closing Date as though made on
and as of the Closing Date (except to the extent in either case that
such representations and warranties speak as of another date, in
which case they shall be so true and correct as of such date), and
Oryx shall have received a certificate of the chief executive officer
and the chief financial officer of Xxxx-XxXxx to such effect.
(b) Performance of Obligations of Xxxx-XxXxx.
Xxxx-XxXxx shall have performed or complied in all material respects
with all agreements and covenants required to be performed by it
under this Agreement at or prior to the Closing Date, and Oryx shall
have received a certificate of the chief executive officer and the
chief financial officer of Xxxx-XxXxx to such effect.
(c) Tax Opinion. Oryx shall have received from
Xxxxx, Day, Xxxxxx & Xxxxx, counsel to Oryx, on or before the Form S-
4 shall become effective and, subsequently, on the Closing Date, a
written opinion dated as of such dates, based on appropriate
representations of Xxxx-XxXxx and Oryx, to the effect that (i) the
Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code and
(ii) Xxxx-XxXxx and Oryx will each be a party to the reorganization
within the meaning of Section 368(b) of the Code.
(d) Rights Agreement. No "Stock Acquisition
Date" or "Distribution Date" shall have occurred pursuant to and as
defined in the Xxxx-XxXxx Rights Agreement.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 Termination. This Agreement may be
terminated at any time prior to the Effective Time, by action taken or
authorized by the Board of Directors of the terminating party or parties, and
except as provided below, whether before or after approval of the matters
presented in connection with the Merger by the stockholders of Oryx or Xxxx-
XxXxx:
(a) By mutual written consent of Xxxx-XxXxx and
Oryx;
(b) By either Oryx or Xxxx-XxXxx if the
Effective Time shall not have occurred on or before June 30, 1999
(the "Termination Date"); provided, however, that the right to
terminate this Agreement under this Section 7.1(b) shall not be
available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of
the Effective Time to occur on or before the Termination Date;
(c) By either Oryx or Xxxx-XxXxx if any law,
rule or regulation shall have been adopted or promulgated, or any
Governmental Entity shall have issued an order, decree or ruling or
taken any other action which shall have become final and
nonappealable, having the effect of making the Merger illegal or
otherwise prohibiting consummation of the Merger; provided, however,
that the right to terminate this Agreement under this Section 7.1(c)
shall not be available to any party who failed to comply with Section
5.3 in connection with such action;
(d) By Oryx or Xxxx-XxXxx, prior to receipt of its
required stockholders approval, upon five Business Days' prior notice
to the other party (which notice shall entitle the other party to
terminate this Agreement pursuant to Section 7.1(f)), in order to
accept a proposal which its Board of Directors shall have determined
as of the date of such notice is a Superior Proposal; provided,
however, that (i) any financing with respect thereto is committed for
the full amount required, (ii) the terminating party shall have
complied with its obligations under Section 5.4, (iii) such notice
shall include a copy of any proposed or definitive documentation
relating to such Superior Proposal, and shall otherwise indicate all
material terms and conditions with respect thereto, (iv) prior to any
such termination, the terminating party shall, if requested by the
other party in connection with a revised proposal by it, negotiate in
good faith for such five Business Day period with the other party,
(v) the Board of Directors of the terminating party shall have
determined, as of the effective date of such termination, after
taking into account any revised proposal by the other party during
such five Business Day period, that such third-party proposal remains
a Superior Proposal (and such financing remains so committed) and
(vi) immediately following such termination, the terminating party
enters into definitive and binding documentation with respect to such
Superior Proposal; provided, further, that it shall be a condition to
termination by the terminating party pursuant to this Section 7.1(d)
that the terminating party shall have made the payment of the fee to
the other party required by Section 7.2;
(e) By either Oryx or Xxxx-XxXxx if (i) the
approval by the stockholders of Oryx required for the consummation of
the Reverse Split or the Merger shall not have been obtained by
reason of the failure to obtain the Required Oryx Vote or (ii) the
approval by the stockholders of Xxxx-XxXxx required for the
consummation of the Merger shall not have been obtained by reason of
the failure to obtain the Required Xxxx-XxXxx Vote, in each case upon
the taking of such vote at a duly held meeting of stockholders of
Oryx or Xxxx-XxXxx, as the case may be, or at any adjournment
thereof;
(f) (i) By Oryx if the Board of Directors of
Xxxx-XxXxx shall have effected an Adverse Change in the Xxxx-XxXxx
Recommendation (or resolved to take such action), approved or
recommended another Acquisition Proposal (or resolved to take such
action) or failed to reconfirm its recommendation set forth in
Section 3.1(f), if so requested by Xxxx-XxXxx, within fifteen days
following such request and in any event at least ten days prior to
the Oryx Stockholders Meeting, or Xxxx-XxXxx shall have delivered the
notice described in Section 7.1(d) above or breached Section 4.1(l);
or
(ii) by Xxxx-XxXxx if the Board of Directors
of Oryx shall have effected an Adverse Change in the Oryx
Recommendation (or resolved to take such action) or shall have
approved or recommended another Acquisition Proposal (or resolved to
take such action) or failed to reconfirm its recommendation set forth
in Section 3.2(f), if so requested by Oryx, within fifteen days
following such request, and in any event at least ten days prior to
the Xxxx-XxXxx Stockholders Meeting, or Oryx shall have delivered the
notice described in Section 7.1(d) above or breached Section 4.2(l);
or
(g) By Xxxx-XxXxx, if a "Shares Acquisition Date"
or "Triggering Event" shall have occurred pursuant to and as defined
in the Oryx Rights Agreement; or by Oryx, if a "Stock Acquisition
Date" shall have occurred pursuant to and as defined in the Xxxx-
XxXxx Rights Agreement.
7.2 Effect of Termination.
(a) In the event of termination of this
Agreement by either Oryx or Xxxx-XxXxx as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Xxxx-XxXxx or Oryx or their respective officers or
directors except with respect to Section 3.1(m), Section 3.2(m), the second
sentence of Section 5.2, Section 5.6, this Section 7.2 and Article VIII,
which provisions shall survive such termination, and except that,
notwithstanding anything to the contrary contained in this Agreement, neither
Xxxx-XxXxx nor Oryx shall be relieved or released from any liabilities or
damages arising out of its willful material breach of this Agreement.
(b) Xxxx-XxXxx shall pay Oryx the sum $60
million if this Agreement is terminated solely as follows: (i) by Oryx
pursuant to Section 7.1(f) or (g) (which fee shall be payable immediately
upon such termination); (ii) by Xxxx-XxXxx pursuant to Section 7.1(d) (which
fee shall be payable as a condition to such termination); or (iii) by either
party pursuant to Section 7.1(e)(ii), if (A) at or at any time prior to such
termination, Oryx was entitled to terminate this Agreement pursuant to
Section 7.1(f) (which fee shall be payable immediately upon such termination)
or (B) (x) at any time after the date of this Agreement and at or before the
date of the Xxxx-XxXxx Stockholders Meeting an Acquisition Proposal with
respect to Xxxx-XxXxx shall have been publicly announced or otherwise
publicly communicated (a "Prior Xxxx-XxXxx Proposal"), and (y) within twelve
months of the termination of this Agreement, Xxxx-XxXxx enters into a
definitive agreement with respect to (1) such Prior Xxxx-XxXxx Proposal or
any other Acquisition Proposal (with respect to Xxxx-XxXxx) with any party
who made a Prior Xxxx-XxXxx Proposal or (2) any Alternative Transaction (as
defined in Section 8.11) with respect to Xxxx-XxXxx with any other Person,
and such Prior Xxxx-XxXxx Proposal, Acquisition Proposal or Alternative
Transaction is consummated (which fee shall be payable immediately upon such
consummation).
(c) Oryx shall pay Xxxx-XxXxx the sum $60
million if this Agreement is terminated solely as follows: (i) by Xxxx-XxXxx
pursuant to Section 7.1(f) or (g) (which fee shall be payable immediately
upon such termination); (ii) by Oryx pursuant to Section 7.1(d) (which fee
shall be payable as a condition to such termination); or (iii) by either
party pursuant to Section 7.1(e)(i), if (A) at or at any time prior to such
termination, Xxxx-XxXxx was entitled to terminate this Agreement pursuant to
Section 7.1(f) (which fee shall be payable immediately upon such termination)
or (B) (x) at any time after the date of this Agreement and at or before the
date of the Oryx Stockholders Meeting an Acquisition Proposal with respect to
Oryx shall have been publicly announced or otherwise publicly communicated (a
"Prior Oryx Proposal"), and (y) within twelve months of the termination of
this Agreement, Oryx enters into a definitive agreement with respect to (1)
such Prior Oryx Proposal or any other Acquisition Proposal (with respect to
Oryx) with any party who made a Prior Oryx Proposal or (2) any Alternative
Transaction with respect to Oryx with any other Person, and such Prior Oryx
Proposal, Acquisition Proposal or Alternative Transaction is consummated
(which fee shall be payable immediately upon such consummation).
(d) In addition, in any case in which a fee is
payable pursuant to paragraph (b) or (c) above, the party paying such fee
shall in addition promptly pay the other party the sum of $5 million in
respect of Expenses incurred by or on behalf of it in connection with this
Agreement and the Stock Option Agreements, such payment to be made in cash at
the time of the payment of the fee pursuant to paragraph (b) or (c) above.
7.3 Amendment. This Agreement may be amended by
the parties hereto, by action taken or authorized by their respective Boards
of Directors, at any time before or after approval of the matters presented
in connection with the Merger by the stockholders of Oryx and Xxxx-XxXxx,
but, after any such approval, no amendment shall be made which by law or in
accordance with the rules of any relevant stock exchange requires further
approval by such stockholders without such further approval. This Agreement
may not be amended except by an instrument in writing signed on behalf of
each of the parties hereto.
7.4 Extension; Waiver. At any time prior to the
Effective Time, the parties hereto, by action taken or authorized by their
respective Boards of Directors, may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations or other acts
of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations, Warranties
and Agreements. None of the representations, warranties, covenants and other
agreements in this Agreement or in any instrument delivered pursuant to this
Agreement, including any rights arising out of any breach of such
representations, warranties, covenants and other agreements, shall survive
the Effective Time, except for those covenants and agreements contained
herein and therein that by their terms apply or are to be performed in whole
or in part after the Effective Time and this Article VIII.
8.2 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed duly given
(a) on the date of delivery if delivered personally, or by telecopy or
telefacsimile, upon confirmation of receipt, (b) on the first Business Day
following the date of dispatch if delivered by a recognized next-day courier
service, or (c) on the tenth Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the
party to receive such notice:
(a) if to Xxxx-XxXxx, to
Xxxx-XxXxx Corporation
000 Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) if to Oryx to
Oryx Energy Company
Oryx Energy Center
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
8.3 Interpretation. When a reference is made in
this Agreement to Sections, Exhibits or Schedules, such reference shall be to
a Section of or Exhibit or Schedule to this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation". Inclusion of any matter on
any Schedule to this Agreement shall not be deemed an admission that such
item is material or otherwise required to be included on such Schedule.
8.4 Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the
other party, it being understood that both parties need not sign the same
counterpart.
8.5 Entire Agreement; No Third Party
Beneficiaries.
(a) This Agreement, the Stock Option Agreements
and the Confidentiality Agreements constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, other than Section 5.7 (which is intended to be for
the benefit of the Persons covered thereby and may be enforced by such
Persons).
8.6 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN.
8.7 Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of being
enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the
greatest extent possible.
8.8 Assignment. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto, in whole or in part (whether by operation of law or
otherwise), without the prior written consent of the other party, and any
attempt to make any such assignment without such consent shall be null and
void. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
8.9 Submission to Jurisdiction; Waivers. Each
of Xxxx-XxXxx and Oryx irrevocably agrees that any legal action or proceeding
with respect to this Agreement or for recognition and enforcement of any
judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the Chancery or other
Courts of the State of Delaware, and each of Xxxx-XxXxx and Oryx hereby
irrevocably submits with regard to any such action or proceeding for itself
and in respect to its property, generally and unconditionally, to the
nonexclusive jurisdiction of the aforesaid courts. Each of Xxxx-XxXxx and
Oryx hereby irrevocably waives, and agrees not to assert, by way of motion,
as a defense, counterclaim or otherwise, in any action or proceeding with
respect to this Agreement, (a) any claim that it is not personally subject to
the jurisdiction of the above-named courts for any reason other than the
failure to lawfully serve process, (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior
to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise), and (c) to the fullest extent permitted by applicable
law, that (i) the suit, action or proceeding in any such court is brought in
an inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper and (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
8.10 Enforcement. The parties agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms.
It is accordingly agreed that the parties shall be entitled to specific
performance of the terms hereof, this being in addition to any other remedy
to which they are entitled at law or in equity.
8.11 Definitions. As used in this Agreement:
(a) "Alternative Transaction" means, with
respect to Oryx or Xxxx-XxXxx, any merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving it or any of its material
Subsidiaries, or any purchase or sale of the assets (including stock of
Subsidiaries) of it or any of its Subsidiaries, taken as a whole, having an
aggregate value equal to 25% or more of the consolidated asset value of such
party, or any purchase or sale of, or tender or exchange offer for, 25% or
more of the equity securities of such party.
(b) "beneficial ownership" or "beneficially own"
shall have the meaning under Section 13(d) of the Exchange Act and the rules
and regulations thereunder.
(c) "Benefit Plans" means, with respect to any
Person, each employee benefit plan, program, arrangement and contract
(including, without limitation, any "employee benefit plan," as defined in
Section 3(3) of ERISA and any bonus, incentive, deferred compensation, stock
bonus, stock purchase, restricted stock, stock option, employment,
termination, stay agreement or bonus, change in control and severance plan,
program, arrangement and contract) in effect on the date of this Agreement or
disclosed on the Oryx Disclosure Schedule or the Xxxx-XxXxx Disclosure
Schedule, as the case may be, to which such Person or its Subsidiary is a
party, which is maintained or contributed to by such Person, or with respect
to which such Person could incur material liability under Section 4069, 4201
or 4212(c) of ERISA.
(d) "Board of Directors" means the Board of
Directors of any specified Person and any committees thereof.
(e) "Business Day" means any day on which banks
are not required or authorized to close in each of New York, New York;
Oklahoma City, Oklahoma; and Dallas, Texas.
(f) "known or "knowledge" means, with respect to
any party, the knowledge of such party's executive officers after reasonable
inquiry.
(g) "Material Adverse Effect" means, with
respect to any entity, any change, circumstance or effect that, individually
or in the aggregate with all other changes, circumstances and effects, is or
is reasonably likely to be materially adverse to (i) the business, financial
condition or results of operations of such entity and its Subsidiaries (or,
following the Merger, of the Surviving Corporation and its Subsidiaries)
taken as a whole, other than any change, circumstance or effect relating (x)
to the economy or financial markets in general or (y) in general to the
industries in which Xxxx-XxXxx or Oryx operate and not specifically relating
to Xxxx-XxXxx or Oryx or (ii) the ability of such party to consummate the
transactions contemplated by this Agreement or the Stock Option Agreements.
(h) "the other party" means, with respect to
Oryx, Xxxx-XxXxx and means, with respect to Xxxx-XxXxx, Oryx.
(i) "Person" means an individual, corporation,
limited liability company, partnership, association, trust, unincorporated
organization, other entity or group (as defined in the Exchange Act).
(j) "Subsidiary" when used with respect to any
party means any corporation or other organization, whether incorporated or
unincorporated, (i) of which such party or any other Subsidiary of such party
is a general partner or managing member (excluding partnerships, the general
partnership interests of which held by such party or any Subsidiary of such
party do not have a majority of the voting interests in such partnership) or
(ii) at least a majority of the securities or other interests of which having
by their terms ordinary voting power to elect a majority of the Board of
Directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or
controlled by such party or by any one or more of its Subsidiaries, or by
such party and one or more of its Subsidiaries.
(k) "Superior Proposal" means with respect to
Xxxx-XxXxx or Oryx, as the case may be, a written proposal made by a Person
other than either such party which (I) contemplates (i) a merger,
reorganization, consolidation, share exchange, business combination,
recapitalization, liquidation, dissolution, tender offer, exchange offer or
similar transaction involving such party as a result of which such party's
stockholders prior to such transaction in the aggregate cease to own at least
50% of the voting securities of the ultimate parent entity resulting from
such transaction or (ii) a sale, lease, exchange, transfer or other
disposition (including without limitation a contribution to a joint venture)
of at least 50% of the assets of such party and its Subsidiaries, taken as a
whole, and (II) is on terms which the Board of Directors of such party
determines (after consultation with its financial advisors and outside
counsel), taking into account, among other things, all legal, financial,
regulatory and other aspects of the proposal and the Person making the
proposal, (i) would, if consummated, result in a transaction that is more
favorable, from a financial point of view, to its stockholders (in their
capacities as such) than the transactions contemplated by this Agreement (in
the case of Section 7.1(d), as proposed to be revised) and (ii) is reasonably
likely to be financed and otherwise completed.
______________________________
[Intentionally Left Blank]
IN WITNESS WHEREOF, Xxxx-XxXxx and Oryx have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
XXXX-XxXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
ORYX ENERGY COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chairman/CEO
EXHIBIT 1.5
TO THE MERGER AGREEMENT
FORM OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
XXXX-XxXXX CORPORATION
FIRST: The name of the corporation is:
XXXX-XxXXX CORPORATION
SECOND: The registered office of the corporation in the State of
Delaware is located at No. 0000 Xxxxxx Xxxxxx, in the City of Wilmington,
County of New Castle. The name and address of its resident agent is The
Corporation Trust Company, No. 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: (1) The total number of shares of all classes of stock which
the corporation shall have the authority to issue is 340,000,000, of which
40,000,000 shares shall be preferred stock, without par value, and
300,000,000 shall be common stock of the par value of $1.00 per share.
Each holder of common stock, as such, shall be entitled to one vote for
each share of common stock held of record by such holder on all matters on
which stockholders generally are entitled to vote; provided, however, that,
except as otherwise required by law, holders of common stock, as such, shall
not be entitled to vote on any amendment to this certificate of incorporation
(including any certificate of designations relating to any series of
preferred stock) that relates solely to the terms of one or more outstanding
series of preferred stock if the holders of such affected series are
entitled, either separately or together with the holders of one or more other
such series, to vote thereon pursuant to this certificate of incorporation
(including any certificate of designations relating to any series of
preferred stock) or pursuant to the General Corporation Law of the State of
Delaware.
(2) The preferred stock may be issued from time to time in one or more
series. The resolution or resolutions of the Board of Directors providing
for the issue of shares of a particular series shall fix, subject to
applicable laws and provisions of this certificate of incorporation, the
voting power, designation, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions of
the shares of such series. The authority of the Board of Directors with
respect to each series shall include, but not be limited to, determination of
the following:
i) the number of shares constituting such series, including the
authority to increase or decrease such number, and the
distinctive designation of such series;
ii) the rate of dividends payable on shares of such series, the
dates on which such dividends shall be paid, and whether such
dividends shall be cumulative or noncumulative;
iii) the full or limited voting power, if any, for such series and
the terms and conditions under which such voting power may be
exercised;
iv) the right, if any, of the corporation to redeem shares of such
series and the terms and conditions of such redemption;
v) the obligations, if any, of the corporation to retire shares
of such series pursuant to a retirement or sinking fund of a
similar nature or otherwise and the terms and conditions of
such obligation;
vi) the terms and conditions, if any, upon which the shares of
such series shall be convertible into shares of stock of any
other class or series including the conversion rate and the
term of adjustment thereof, if any;
vii) the amount which the holders of the shares of such series
shall be entitled to receive in case of a liquidation,
dissolution or winding up of the corporation;
viii) the relative priority of the shares of such series to shares
of other classes or series with respect to dividends or upon
the dissolution of or the distribution of assets of the
corporation; and
ix) and other rights and qualifications, preferences and
limitations or restrictions of the shares of such series;
so far as not inconsistent with the provisions of this
certificate of incorporation and to the full extent now or
hereafter permitted by the laws of the State of Delaware.
(3) Except as otherwise provided in this paragraph (3), no direct or
indirect purchase by the corporation from any Interested Stockholder (as
hereinafter defined) of shares of common stock of the corporation
beneficially owned by such Interested Stockholder for less than two years
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prior to the date of such purchase shall be made at a per share price in
excess of Fair Market Value (as hereinafter defined) at the time of such
purchase unless such purchase is approved by the affirmative vote of not less
than a majority of the Voting Stock (as defined in Article THIRTEENTH) held
by Disinterested Stockholders (as hereinafter defined).
The provisions of this paragraph (3) shall not apply to (i) any offer to
purchase made by the corporation which is made on the same terms and
conditions of the holders of all shares of common stock of the corporation,
or (ii) any open market purchases by the corporation of shares of its common
stock at prevailing market prices.
The provisions of this paragraph (3) shall not be amended without the
affirmative vote of (a) not less than a majority of the Voting Stock entitled
to vote thereon and (b) not less than a majority of the Voting Stock entitled
to vote thereon held by Disinterested Stockholders.
For purposes of this paragraph (3); I) the terms "Interested
Stockholder" shall have the meaning of "Related Person" set forth in
paragraph (B)(3) of Article THIRTEENTH except that the percent of Voting
Stock referred to in clauses (a) and (b) of such definition shall be five
percent (5%) rather than ten percent (10%); (ii) the term "Fair Market Value"
shall have the meaning set forth in paragraph (B)(9) of Article THIRTEENTH
except that "Fair Market Value" shall mean the highest sale price or bid
quotation during the five-trading day period preceding the date of the
purchase of the stock; and (iii) the terms "Disinterested Stockholders" means
those holders of the Voting Stock, none of which is an Interested
Stockholder.
(4) Series B Preferred Stock
Section 1. Designation and Amount. There shall be designated a
series of preferred stock as "Series B Junior Participating Preferred Stock"
(the "Series B Preferred Stock") and the number of shares constituting the
Series B Preferred Stock shall be 1,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of shares of Series B Preferred
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the corporation convertible into Series B Preferred
Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of preferred stock of the corporation (the "Preferred Stock") (or any
similar stock) ranking prior and superior to the Series B Preferred Stock
with respect to dividends, the holders of shares of Series B Preferred Stock,
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in preference to the holders of common stock of the corporation (the "Common
Stock") and of any other stock of the corporation ranking junior to the
Series B Preferred Stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of January,
April, July, and October in each year (each such date being referred to
herein as a "Dividend Payment Date"), commencing on the first Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series B Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the -cash dividends or other distributions
other than a dividend payable in shares of Common Stock, declared on the
Common Stock since the immediately preceding Dividend Payment Date or, with
respect to the first Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series B Preferred Stock. In the event the
corporation shall at any time after July 9, 1996 declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The corporation shall declare a dividend or distribution on
the Series B Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend of $1 per share on the Series B
Preferred Stock shall nevertheless be payable, when, as and if declared, on
such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative, whether or
not earned or declared, on outstanding shares of Series B Preferred Stock
from the Dividend Pays the date of issue of such shares is prior to the
record date for the first Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series B Preferred
Stock entitled to receive a quarterly dividend and before such Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Dividend Payment Date. Accrued but unpaid
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dividends shall not bear interest. Dividends paid on the shares of Series B
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders of
shares of Series B Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth and except as otherwise provided in this certificate of
incorporation or required by law, each share of Series B Preferred Stock
shall entitle the holder thereof to 100 votes on all matters upon which
the holders of the Common Stock of the corporation are entitled to vote.
In the event the corporation shall at any time after July 9, 1996
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in this certificate of
incorporation or in any other certificate of designations creating a
series of Preferred Stock or any similar stock, and except as otherwise
required by law, the holders of shares of Series B Preferred Stock and
the holders of shares of Common Stock and any other capital stock of the
corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the
corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in
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Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not earned or declared, on
shares of Series B Preferred Stock outstanding shall have been paid in
full, the corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (as to
dividends) to the Series B Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (as to
dividends) with the Series B Preferred Stock, except dividends paid
ratably on the Series B Preferred Stock and all such parity stock
on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock, provided that the corporation may at any
time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the corporation
ranking junior (as to dividends and upon dissolution, liquidation
or winding up) to the Series B Preferred Stock or rights, warrants
or options to acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock, or any shares
of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred
Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration any
shares of stock of the corporation unless the corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B Preferred
Stock purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their retirement become authorized but
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unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or resolutions of the
Board of Directors, subject to any conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or Winding up. Upon any
liquidation, dissolution or winding up of the corporation, no distribution
shall be made (A) to the holders of the Common Stock or of shares of any
other stock of the corporation ranking junior, upon liquidation, dissolution
or winding up, to the Series B Preferred Stock unless, prior thereto, the
holders of shares of Series B Preferred Stock shall have received $100 per
share, plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not earned or declared, to the date of such payment,
provided that the holders of shares of Series B Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate amount
to be distributed per share to holders of shares of Common Stock, or (B) to
the holders of shares of stock ranking on a parity upon liquidation,
dissolution or winding up with the Series B Preferred Stock, except
distributions made ratably on the Series B Preferred Stock and all such
parity stock in proportion to the total amounts to which holders of all such
shares are entitled upon liquidation, dissolution or winding
up. In the event, however, that there are not sufficient assets available to
permit payment in full of the Series B liquidation preference and the
liquidation preferences of all other classes and series of stock of the
corporation, if any, that rank on a parity with the Series B Preferred Stock
in respect thereof, then the assets available for such distribution shall be
distributed ratably to the holders of the Series B Preferred Stock and the
holders of such parity shares in the proportion to their respective
liquidation preferences. In the event the corporation shall at any time
after July 9, 1996 declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case
the aggregate amount to which holders of shares of Series B Preferred Stock
were entitled immediately prior to such event under the proviso in clause (A)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the corporation
shall enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are converted into, exchanged for or
changed into other stock or securities, cash and/or any other property, then
in any such case each share of Series B Preferred Stock shall at the same
time be similarly converted into, exchanged for or changed into an amount per
share (subject to the provision for adjustment hereinafter set forth) equal
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to 100 times the s, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is converted,
exchanged or converted. In the event the corporation shall at any time after
July 9, 1996 declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case
the amount set forth in the preceding sentence with respect to the
conversion, exchange or change of shares of Series B Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series B Preferred Stock
shall not be redeemable from any holder.
Section 9. Rank. The Series B Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the corporation, junior to all
other series of Preferred Stock and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to this
certificate of incorporation would alter, change or repeal any of the
preferences, powers or special rights given to the Series B Preferred Stock
so as to affect the Series B Preferred Stock adversely, then the holders of
the Series B Preferred Stock shall be entitled to vote separately as a class
upon such amendment, and the affirmative vote of two-thirds of the
outstanding shares of the Series B Preferred Stock, voting separately as a
class, shall be necessary for the adoption thereof, in addition to such other
vote as may be required by the General Corporation Law of the State of
Delaware.
Section 11. Fractional Shares. Series B Preferred Stock may be
issued in fractions of a share that shall entitle the holder, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series B Preferred Stock.
(5) Preemptive Rights. Neither the holders of preferred stock nor the
holders of common stock shall have any preemptive rights, and the corporation
shall have the right to issue and sell to any person or persons any shares of
its capital stock or any option rights or any securities having conversion or
option rights, without first offering such shares, rights or securities to
any holders of preferred stock or common stock.
FIFTH: (1) The business and affairs of the corporation shall be
managed by a Board of Directors. The number of directors shall be fixed from
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time to time by resolution adopted by affirmative vote of the majority of the
Board of Directors, but shall not be fixed at a number less than three.
The directors shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in
number as possible, with the term of the first class to expire at the 1999
annual meeting of the stockholders, the term of office of the second class to
expire at the 2000 annual meeting of the stockholders, and the term of office
of the third class to expire at the 2001 annual meeting of the stockholders,
with the members of each class to hold office until their successors are
elected and qualified. At each succeeding annual meeting of the stockholders
of the corporation, the successors to the class of directors whose term
expires at the meeting shall be elected to hold office for a term expiring at
the annual meeting of the stockholders held in the third year following the
year of their election.
Newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred until such
director's successor shall have been elected and qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Directors may be removed only for cause, and then only by the
affirmative vote of at least 75 percent in voting power of all shares of the
corporation entitled to vote generally in the election of directors, voting
as a single class.
(2) Notwithstanding the foregoing, whenever the holders of any one or
more series of preferred stock issued by the corporation shall have the
right, voting separately as a series or separately as a class with one or
more such other series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, removal, filling of vacancies and
other features of such directorships shall be governed by the terms of this
certificate of incorporation (including any certificate of designations
relating to any series of preferred stock) applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this
Article FIFTH unless expressly provided by such terms.
SIXTH: The Board of Directors shall be authorized to make, amend, alter,
change, add to or repeal the By-Laws of the corporation in any manner not
inconsistent with the laws of the State of Delaware, subject to the power of
the stockholders to amend, alter, change, add to or repeal the By-Laws made
by the Board of Directors. Notwithstanding anything contained in this
certificate of incorporation to the contrary, the affirmative vote of the
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holders of at least 75 percent in voting power of all the shares of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required in order for the stockholders
to alter, amend or repeal any provision of the By-Laws which is to the same
effect as Article FIFTH, Article SIXTH, and Article FOURTEENTH of this
certificate of incorporation or to adopt any provision inconsistent
therewith.
SEVENTH: (1) (a) The corporation shall, to the full extent permitted
by the Laws of the State of Delaware as then in effect or, if less stringent,
in effect on December 31, 1985 ("Delaware Law"), and as more fully described
in the By-Laws, indemnify any person (the "Indemnitee") made or threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and
whether or not by or in the right of the corporation, by reason of the fact
that the Indemnitee is or was a director, officer or employee of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, trustee, partner, or other agent of any other
enterprise or legal person (any such action, suit or proceeding being herein
referred to as a "Legal Action") against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee in connection with such Legal Action or
its investigation, defense or appeal (herein called "Indemnified Expenses"),
if the Indemnitee has met the standard of conduct necessary under Delaware
Law to permit such indemnification. Rights to indemnification shall extend
to the heirs, beneficiaries, administrators and executors of any deceased
Indemnitee.
For purposes of this Section, reference to "any other enterprise or
legal person" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries.
(b) The Indemnified Expenses shall be paid by the corporation in
advance as shall be appropriate to permit Indemnitee to defray such expenses
currently as incurred, provided the Indemnitee agrees in writing that in the
event it shall ultimately be determined as provided hereunder that Indemnitee
was not entitled to be indemnified, then Indemnitee shall promptly
repay to the corporation such amounts so paid.
(c) Any amendment, repeal or modification of this Article SEVENTH,
the corporation's By-Laws or any applicable provision of Delaware Law, or any
other instrument, which eliminates or diminishes the indemnification rights
provided for in this Article SEVENTH shall be ineffective as against an
Indemnitee with respect to any Legal Action based upon actions taken or not
taken by the Indemnitee prior to such repeal or the adoption of such
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modification or amendment. The provisions of this Article SEVENTH, Section
(1) shall be applicable to all Legal Actions made or commenced after the
adoption hereof, whether arising from acts or omissions to act occurring
before or after its adoption. The provisions of this Article SEVENTH,
Section (1) shall be deemed to be a contract between the corporation and each
director or officer who serves in such capacity at any time while this
Article SEVENTH, Section (1) and the relevant provisions of Delaware Law and
other applicable law, if any, are in effect. If any provision of this
Article SEVENTH, Section (1) shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect the
validity of the remaining provisions hereof. The rights of indemnification
provided in this Article SEVENTH, Section (1) shall neither be exclusive of,
nor be deemed in limitation of, any rights to which an officer, director,
employee or agent may otherwise be entitled or permitted by contract, this
certificate of incorporation, vote of stockholders or directors or otherwise,
or as a matter of law, both as to actions in such person's official capacity
and actions in any other capacity while holding such office, it being the
policy of the corporation that indemnification of any person whom the
corporation is obligated to indemnify pursuant to subsection (a) of this
Article SEVENTH, Section (1) shall be made to the fullest extent permitted by
law.
(d) The corporation may purchase and maintain insurance on behalf
of any person described in subsection (a) of this Article SEVENTH, Section
(1) against any liability asserted against such person, whether or not
the corporation would have the power to indemnify such person against such
liability under the provisions of this Article SEVENTH, Section (1) or
otherwise.
(2) To the full extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a director
of the corporation shall not be liable to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director. No repeal,
amendment or modification of this Article, whether direct or indirect, shall
eliminate or reduce its effect with respect to any act or omission of a
director of the corporation occurring prior to such repeal, amendment or
modification.
EIGHTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
corporation under Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority
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in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and
to any reorganization of this corporation as a consequence of such compromise
or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
corporation, as the case may be, and also on this corporation.
NINTH: [Reserved]
TENTH: [Reserved]
ELEVENTH: [Reserved]
TWELFTH: [Reserved]
THIRTEENTH: The vote of the stockholders of the corporation required to
approve any Business Transaction shall be as set forth in this Article
THIRTEENTH. Each capitalized term shall have the meaning ascribed to it in
Paragraph (B) of this Article.
(A) Notwithstanding any provision of law or any other provision of this
certificate of incorporation or any agreement with any national securities
exchange or otherwise which might permit a lesser vote or no vote and in
addition to any affirmative vote required of the holders of any particular
class or series of Voting Stock by law or by this certificate of
incorporation, the affirmative vote of the holders of not less than 51% of
the outstanding shares of Voting Stock of the corporation beneficially owned
by stockholders other than the Related Person shall be required for the
approval or authorization of any Business Transaction; provided, however,
that such 51% voting requirement shall not be applicable to any Business
Transaction, and such Business Transaction shall require only such
affirmative vote as is required by law, any other provision of this
certificate of incorporation, any preferred stock designation or any
agreement with any national securities exchange, if, in the case of a
Business Transaction that does not involve any cash or consideration being
received by the stockholders of the corporation solely in
respect of their ownership of shares of Voting Stock of the corporation, the
condition specified in the following paragraph (1) is satisfied, or, in the
case of any other Business Transaction, the conditions specified in either of
the following paragraphs (1) and (2) are satisfied.
(1) the Continuing Directors at the time of such Business
Transaction constitute at least a majority of the Board of Directors of
the corporation and such Business Transaction shall have been approved
by a majority vote of the Continuing Directors; or
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(2)(a) the consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including common
stock) shall be in cash or in the same form as was previously paid in
order to acquire beneficially shares of such class or series of Voting
Stock that are beneficially owned by the Related Person and, if the
Related Person beneficially owns shares of any class or series of Voting
Stock that were acquired with varying forms of consideration, the form
of consideration to be received by holders of such class or series of
Voting Stock shall be either cash or the form used to acquire
beneficially the largest number of shares of such class or series of
Voting Stock beneficially acquired by it prior to the Announcement Date;
and
(b) the aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of any consideration other than cash to be
received per share by holders of common stock in such Business
Transaction shall be at least equal to the highest of the following (it
being intended that the requirements of this clause (A)(2)(b) shall be
required to be met with respect to all shares of common stock
outstanding whether or not the Related Person has acquired any shares of
the common stock):
i) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of common stock beneficially
owned by the Related Person which were acquired beneficially by
such Related Person (x) with in the two-year period immediately
prior to the Announcement Date or (y) in the transaction in which
it became a Related Person, whichever is higher; or
ii) the Fair Market Value per share of common stock on the
Announcement Date or on the Determination Date, whichever is
higher; and
(c) the aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of any consideration other than cash to be
received per share by holders of shares of any other class or series of
Voting Stock, other than common stock, shall be at least equal to the
highest of the following (it being intended that the requirements of
this clause (A)(2)(c) shall be required to be met with respect to every
class and series of such outstanding Voting Stock, whether or not the
Related Person has previously acquired any shares of a particular class
or series of Voting Stock):
i) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of such class or series of
Voting Stock beneficially owned by the Related Person which were
acquired beneficially by such Related Person (x) with the two-year
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period immediately prior to the Announcement Date or (y) in the
transaction in which it became a Related Person, whichever is
higher;
ii) if applicable, the highest preferential amount per share
to which the holders of share of such class or series of Voting
Stock are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the corporation; or
iii) the Fair Market Value per share of such class or series
of Voting Stock on the Announcement Date or the Determination Date,
whichever is higher; and
(d) after such Related Person has become a Related Person and
prior to the consummation of such Business Transaction:
i) such Related Person shall not have become the Beneficial
Owner of any additional shares of Voting Stock of the corporation,
except as part of the transaction in which it became a Related
Person or upon conversion of convertible securities acquired by it
prior to becoming a Related Person or as a result of a pro rata
stock dividend or stock split; and
ii) such Related Person shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial
assistance or tax credits or other tax advantages provided by the
corporation or any Subsidiary, whether in anticipation of or in
connection with such Business Transaction or otherwise; and
iii) such Related Person shall not have caused any material
change in the corporation's business or capital structure,
including, without limitation, the issuance of shares of capital
stock of the corporation to any third party; and
iv) there shall have been (aa) no failure to declare and pay
at the regular date therefor any full quarterly dividends (whether
or not cumulative) on any outstanding preferred stock, and (bb) no
reduction in the annual rate of dividends paid on common stock
(after giving effect to any reclassification, including any reverse
stock split, recapitalization, reorganization or similar
transaction which has the effect of enlarging or reducing the
number of outstanding shares of common stock), unless such failure
or reduction shall have been approved by a majority of the
Continuing Directors; and
(e) a proxy or information statement describing the proposed
Business Transaction and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
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(or any subsequent provisions replacing such Act, rules and
regulations), whether or not the corporation is then subject to such
requirements, shall be mailed at least thirty (30) days prior to the
consummation of such Business Transaction to the public stockholders of
the corporation and shall contain at the front thereof in a prominent
place (i) any recommendations as to the advisability (or inadvisability)
of the Business Transaction which the Continuing Directors, if any, may
choose to state and (ii) the opinion of a reputable national investment
banking firm as to the fairness (or not) of such Business Transaction
from the point of view of the remaining public stockholders of the
corporation (such investment banking firm to be engaged solely on behalf
of the remaining public stockholders, to be paid a reasonable fee for
their services by the corporation upon receipt of such opinion, to be
unaffiliated with such Related Person, and, if there are at the time any
Continuing Directors, to be selected by a majority of the Continuing
Directors).
(B) For purposes of this Article THIRTEENTH:
(1) the term "Business Transaction" shall mean
(a) any merger or consolidation of the corporation or any
Subsidiary with (i) any Related Person or (ii) any other
corporation or entity (whether or not itself a Related Person)
which is, or after such merger or consolidation, would be, an
Affiliate of a Related Person;
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or in a series of
transactions) to or with any Related Person or any Affiliate of any
Related Person of assets of the corporation or any Subsidiary
having an aggregate Fair Market Value of $10,000,000 or more;
(c) the adoption of any plan or proposal for the liquidation
or dissolution of the corporation proposed by or on behalf of a
Related Person or any Affiliate of the Related Person;
(d) the issuance of or transfer by the corporation or any
Subsidiary (in one transaction or in a series of related
transactions) of any securities of the corporation or any
Subsidiary to a Related Person, or any Affiliate of a Related
Person, in exchange for cash, securities or other property (or a
combination thereof) having a Fair Market Value of $10,000,000 or
more, other than the issuance of securities upon the conversion of
convertible securities of the corporation or any Subsidiary which
were not acquired by such Related Person (or such Affiliate) from
the corporation or a Subsidiary;
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(e) any reclassification of securities (including any reverse
stock split), or recapitalization or reorganization of the
corporation, or any merger or consolidation of the corporation with
any of its Subsidiaries or any self tender offer for or repurchase
of securities of the corporation or any Subsidiary by the
corporation or any Subsidiary or any other transaction (whether or
not with or into or otherwise involving a Related Person) which in
any such case has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class or
series of stock or securities convertible into stock of the
corporation or any Subsidiary which is directly or indirectly
beneficially owned by any Related Person or any Affiliate of any
Related Person;
(2) A person shall mean any individual, firm, corporation, group
(as such term is used in Rule 13d of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December 31,
1984) or other entity.
(3) "Related Person" shall mean any person (other than the
corporation or any Subsidiary or any employee benefit plan of the
corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than ten percent of the combined voting power of the then
outstanding shares of Voting Stock; or
(b) is an Affiliate of the corporation and at anytime within
the two-year period immediately prior to the date in question was
the beneficial owner, directly or indirectly, of ten percent or
more of the combined voting power of the then outstanding shares of
Voting Stock; or
(c) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock that were at any
time within the two-year period immediately prior to the date in
question beneficially owned by a Related Person, if such assignment
or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(4) A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether or not such right is
exercisable immediately), pursuant to any agreement, arrangement or
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understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the right to vote
or direct the vote pursuant to any agreement, arrangement or
understanding; or
(c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(5) For the purposes of determining whether a person is a Related
Person pursuant to Paragraph (B)(3) of this Article THIRTEENTH, the
number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned by such Related Person through application of
Paragraph (B)(4) of this Article but shall not include any other shares
of Voting Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(6) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1984.
(7) "Subsidiary" shall mean any corporation more than 50% of whose
outstanding stock having ordinary voting power in the election of
directors is owned, directly or indirectly, by this corporation or by a
Subsidiary or by this corporation and one or more Subsidiaries;
provided, however, that for the proposes of the definition of Related
Person set forth in Paragraph (B)(3) of this Article THIRTEENTH, the
term "Subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by this
corporation.
(8) "Continuing Director" shall mean any member of the Board of
Directors of this corporation who is unaffiliated with, and not a
nominee of, the Related Person and was a member of the Board prior to
the time that the Related Person became a Related Person, and any
successor of a Continuing Director who is unaffiliated with, and not a
nominee of, the Related Person and who is recommended to succeed a
Continuing Director by a majority of Continuing Directors then on the
Board of Directors.
(9) "Fair Market Value" shall mean: (1) in the case of stock, the
highest closing sale price during the 30-day period preceding the date
in question of a share of such stock on the Composite Tape of New York
Stock Exchange-Listed stocks, or, if such stock is not quoted on the New
York Stock Exchange-Composite Tape, on the principal United States
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securities exchange registered under the Securities Exchange Act of 1934
on which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing sales price or bid quotation with
respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or if no such
quotations are available, the fair market value on the date in question
of a share of such stock as determined by a majority of the Continuing
Directors in good faith; and (2) in the case of stock of any class or
series which is not traded on any United States registered securities
exchange nor in the over-the-counter market or in the case of property
other than cash or stock, the fair market value of such property on the
date in question as determined by a majority of the Continuing Directors
in good faith.
(10) In the event of any Business Transaction in which the
corporation survives, the phrase "any consideration other than cash to
be received" as used in Paragraph (A)(2)(b) and (A)(2)(c) of this
Article THIRTEENTH shall include the shares of common stock and/or the
share of any other class of outstanding Voting Stock retained by the
holders of such shares.
(11) "Announcement Date" shall mean the date of first public
announcement of the proposed Business Transaction.
(12) "Determination Date" shall mean the date on which the Related
Person became a Related Person.
(13) "Consummation Date" shall mean the date of the consummation of
the Business Transaction.
(14) The terms "Voting Stock" shall mean all outstanding shares of
capital stock of all classes and series of the corporation entitled to
vote generally in the election of directors of the corporation, in each
case voting together as a single class.
(C) If the Continuing Directors constitute at least a majority of the
Board of Directors of the corporation, a majority of such Continuing
Directors shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article THIRTEENTH, including, without
limitation:
(1) whether a person is a Related Person;
(2) the number of shares of Voting Stock beneficially owned by any
person;
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(3) whether a person is an Affiliate or Associate of another
person;
(4) whether the requirements of (A) of this Article THIRTEENTH
have been met with respect to any Business Transaction; and
(5) whether the assets which are the subject of any Business
Transaction have, or the consideration to be received for the issuance
or transfer of securities by the corporation or any Subsidiary in any
Business Transaction has, an aggregate Fair Market Value of $10,000,000
or more. The good faith determination of a majority of the Continuing
Directors on such matters shall be conclusive and binding for all
purposes of this Article THIRTEENTH.
(D) Nothing contained in this Article THIRTEENTH shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
(E) Notwithstanding anything contained in this certificate of
incorporation to the contrary, the affirmative vote of (1) the holders of at
least 51% of the Voting Stock, voting together as a single class, and (2) the
holders of a least 51% of the Voting Stock, voting together as a single
class, other than shares of Voting Stock beneficially owned by a Related
Person, shall be required to alter, amend or repeal this Article THIRTEENTH
or to adopt any provision inconsistent therewith.
FOURTEENTH: Any action required or permitted to be taken by the holders
of the common stock of the corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by any
consent in writing by such holders. Except as otherwise required by law and
subject to the rights of the holders of any series of preferred stock,
special meetings of stockholders of the corporation may be called only by the
Chief Executive Officer of the corporation or by the Board of Directors
pursuant to a resolution approved by the Board of Directors.
FIFTEENTH: Notwithstanding anything contained in this certificate of
incorporation to the contrary, the affirmative vote of the holders of at
least 75 percent in voting power of all the shares of the corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend or repeal Article FIFTH,
Article SIXTH, Article FOURTEENTH or this Article FIFTEENTH or to adopt any
provision inconsistent therewith.
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EXHIBIT 1.6
TO THE MERGER AGREEMENT
FORM OF
AMENDED AND RESTATED
BY-LAWS
OF
XXXX-XxXXX CORPORATION
ARTICLE I
OFFICES
Section 1. The principal place of business of Xxxx-XxXxx
Corporation ("Corporation") shall be in Oklahoma City, Oklahoma.
Section 2. The Corporation may also have offices at such other
places as the Board of Directors may from time to time appoint or the
business of the Corporation may require.
ARTICLE II
SEAL
Section 1. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the words
"Corporate Seal, Delaware". The Corporate Seal may be used by causing it or
a facsimile thereof to be impressed, affixed or reproduced.
Section 2. The corporate seal shall be retained under the custody
and control of the Secretary or Assistant Secretary except as and to the
extent the use of same by others may be expressly authorized by the Board of
Directors.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1. All meetings of the stockholders for any purpose may be
held at such place as shall be stated in the notice of the meeting.
Section 2. An annual meeting of the stockholders shall be held
within one hundred fifty (150) days after the end of each fiscal year as the
Board of Directors may set for a particular year's annual meeting, at which
meeting they shall elect by a plurality vote by ballot a board of directors
and transact such other business as may properly be brought before the
meeting.
Section 3. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite and shall constitute a quorum at all meetings of
the stockholders for the transaction of business except as otherwise provided
by law, by the Certificate of Incorporation or by these By-Laws. If,
however, such majority shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in
person or by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until the
requisite amount of voting stock shall be present. At such adjourned meeting
at which the requisite amount of voting stock shall be represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 4. At any meeting of the stockholders, every stockholder
having the right to vote shall be entitled to vote in person or by proxy
appointed either by an instrument in writing, subscribed by such stockholder
or by other means permitted by applicable law.
Section 5. Except as may otherwise be provided by law or in the
Certificate of Incorporation of the Corporation, or any amendment thereto,
each stockholder shall have one vote for each share of the stock having
voting power, registered in his name on the books of the Corporation, and
except where the transfer books of the Corporation shall have been closed or
a date shall have been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted on at any
election for directors which shall have been transferred on the books of the
Corporation within twenty days preceding such election of directors, or on
any other matter respecting which stockholders are entitled to vote if such
stock has been so transferred within twenty days prior to action on such
matter.
Section 6. Except as otherwise provided by law, written notice of
the annual meeting of stockholders shall be given at least ten days prior to
the meeting, and in accordance with Article XXI hereof, to each stockholder
so entitled to vote thereat.
Section 7. A complete list of the stockholders so entitled to vote
at the ensuing election of directors arranged in alphabetical order, with the
address of each, and the number of voting shares registered in the name of
each, shall be filed in the office where the election is to be held, at least
ten days before every election, and shall at all times during the ordinary
business hours and during the whole time of said election be open to the
examination of any stockholder.
Section 8. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute, shall be called only by
the Chief Executive Officer of the Corporation or by the Secretary at the
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direction of the Board of Directors pursuant to a resolution approved by the
Board of Directors.
Section 9. Business transacted at all special meetings shall be
confined to the objects stated in the notice of the meeting.
Section 10. Written notice of a special meeting of stockholders,
stating the time and place and object thereof, shall be given at least ten
days before such meeting, and in accordance with Article XXI hereof, to each
stockholder entitled to vote thereat.
Section 11.
(A) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) pursuant to
the Corporation's notice of meeting delivered pursuant to Article III,
Section 6 of these By-Laws, (b) by or at the direction of the Chief Executive
Officer or the Board of Directors or (c) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complied with the
notice procedures set forth in subparagraphs (2) and (3) of this paragraph
(A) of this By-Law and who was a stockholder of record at the time such
notice is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this By-Law, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation, and, in the case of business
other than nominations, such other business must be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be delivered
to the Secretary at the principal executive offices of the Corporation not
less than seventy days nor more than ninety days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that
in the event that the date of the annual meeting is advanced by more than
twenty days, or delayed by more than seventy days, from such anniversary
date, notice by the stockholder to be timely must be so delivered not earlier
than the ninetieth day prior to such annual meeting and not later than the
close of business on the later of the seventieth day prior to such annual
meeting or the tenth day following the day on which public announcement of
the date of such meeting is first made. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; (b) as to any other
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business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest
in such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as they appear
on the Corporation's books, and of such beneficial owner and (ii) the class and
number of shares of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by
the Corporation at least eighty days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this By-
Law shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting pursuant
to Article III, Section 10 of these By-Laws. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Chief
Executive Officer or the Board of Directors or (b) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the
notice procedures set forth in this By-Law and who is a stockholder of record
at the time such notice is delivered to the Secretary of the Corporation.
Nominations of stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the stockholder's
notice as required by paragraph (A)(2) of this By-Law shall be delivered to
the Secretary at the principal executive offices of the Corporation not
earlier than the ninetieth day prior to such special meeting and not later
than the close of business on the later of the seventieth day prior to such
special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(C) General.
(1) Only persons who are nominated in accordance with the
procedures set the forth in this By-Law shall be eligible to serve as
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directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws, the chairman of the
meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this By-Law and, if any proposed nomination
or business is not in compliance with this By-Law, to declare that such
defective nomination shall be disregard or that such proposed business shall
not be transacted.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Xxxxx News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) For purposes of this By-Law, no adjournment nor notice of
adjournment of any meeting shall be deemed to constitute a new notice of such
meeting for purposes of this Section 11, and in order for any notification
required to be delivered by a stockholder pursuant to this Section 11 to be
timely, such notification must be delivered within the periods set forth
above with respect to the originally scheduled meeting.
(4) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE IV
DIRECTORS
Section 1. The property and business of the Corporation shall be
managed by its Board of Directors, the members of which need not be
stockholders.
Section 2. The Board of Directors of the Corporation shall consist
of such number of directors, not less than three, as shall from time to time
be fixed exclusively by resolution of the Board of Directors. The directors
shall be divided into three classes in the manner set forth in the
Certificate of Incorporation of the Corporation, each class to be elected for
the term set forth therein. Directors shall (except as hereinafter provided
for the filling of vacancies and newly created directorships) be elected by
the holders of a plurality of the voting power present in person or
represented by proxy and entitled to vote.
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Section 3. Each director shall be elected to serve until his
successor shall be elected and shall qualify by evidence of acceptance of
such office and such acceptance shall be presumed in the absence of express
rejection thereof by the person elected within ten days after his knowledge
of election. A person who has passed his 64th birthday and who has not
theretofore served as a director of the Corporation shall not be eligible to
be elected a director, whether pursuant to this Section 3 or to Section 6, of
this Article. A person who has passed his 70th birthday, or who has retired
as an employee, shall not in any event be eligible for reelection to the
Board or be qualified for continued service as a director of the Corporation,
irrespective of prior service as a director of the Corporation. For purposes
of this Section, any service as a director of {O Company} prior to the merger
of {O Company} shall be deemed to be prior service as a director of the
Corporation. Any failure of any director to meet the qualifications for
service as a director set forth in these By-Laws, or otherwise under law,
shall result in the termination of the term of such director.
Section 4. The directors may hold their meetings, have one or more
offices and keep the books of the Corporation in the City of Oklahoma City,
Oklahoma, or at such other places as they may from time to time determine and
designate.
Section 5. The members of the Board of Directors or any committee
thereof may participate in a meeting of such Board or committee, as the case
may be, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this subsection shall
constitute presence in person at such a meeting.
Section 6. Vacancies in the Board of Directors, however
occasioned, and newly created directorships resulting from any increase in
the authorized number of directors, may be filled only by a majority of the
remaining directors then in
office though less than a quorum and the accepting directors so chosen shall
hold office for a term as set forth in the Certificate of Incorporation of
the Corporation and until a successor or successors have been duly elected
and qualified unless sooner displaced.
Section 7. Notwithstanding the foregoing, whenever the holders of
any one or more series of Preferred Stock issued by the Corporation shall
have the right, voting separately by series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, removal,
filling of vacancies and other features of such directorships shall be
governed by the terms of the Amended and Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to Article SEVENTH of the Amended and Restated
Certificate of Incorporation unless expressly provided by such terms. The
number of directors that may be elected by the holders of any such series of
Preferred Stock shall be in addition to the number fixed by or pursuant to
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the By-Laws. Except as otherwise expressly provided in the terms of such
series, the number of directors that may be so elected by the holders of any
such series of stock shall be elected for terms expiring at the next annual
meeting of stockholders and without regard to the classification of the
members of the Board of Directors as set forth in Section 2 hereof, and
vacancies among directors so elected by the separate vote of the holders of
any such series of Preferred Stock shall be filled by the affirmative vote of
a majority of the remaining directors elected by such series, or, if there
are no such remaining directors, by the holders of such series in the same
manner in which such series initially elected a director.
Section 8. Subject to provisions of pertinent law and the
Certificate of Incorporation, dividends, if any, declared respecting any
class of shares of the Corporation's capital stock may be declared by the
Board of Directors at any regular meeting thereof and despite any provision
of the By-Laws to the contrary at any special meeting thereof, whether or not
consideration or action respecting dividends be stated in the notice thereof;
and dividends may be paid in cash or, if the declaration thereof so provides,
in property, including shares of the Corporation. There may be set aside out
of any funds of the Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute discretion, deems
proper as a reserve fund to meet contingencies, or for equalizing dividends,
or for repair or maintaining any property of the Corporation, or for such
other purpose as the Board of Directors shall deem conducive to the interest
of the Corporation, and the Board of Directors may abolish any reserve in the
manner in which it was created.
Section 9. The Board of Directors shall have power to close the
stock transfer books of the Corporation for a period not exceeding sixty days
preceding the date of any meeting of stockholders or the date for payment of
any dividend or the date for the allotment of rights or the date when any
change or conversion or exchange of capital stock shall go into effect or for
any other purpose; provided, however, that in lieu of closing the stock
transfer books, as aforesaid, the Board of Directors may fix in advance a
date not exceeding sixty days preceding the date of any meeting of
stockholders or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date for such other purpose, as a
record date for the determination of the stockholders entitled to notice of,
and to vote at, any such meeting or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or for
such other purpose, and in such case only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment, thereof, or to receive
such allotment of rights, or to exercise such rights or to be considered as
stockholders for such other purpose, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record
date fixed as aforesaid.
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Section 10. In addition to the powers and authorities by these By-
Laws expressly conferred upon it, the Board of Directors may exercise all
such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
Section 11. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting if prior to
such action a written consent thereto is signed by all members of the Board
and such written consent is filed with the minutes of proceedings of the
Board.
ARTICLE V
COMMITTEES
Section 1. The Board of Directors may appoint an Executive
Committee of two or more directors, which shall consist of the Chief
Executive Officer and such other director or directors as shall be designated
by resolution adopted by the Board of Directors. Such Committee shall have
and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation while the Board
of Directors is not in session except that it shall not have power or
authority in reference to (1) amending the Certificate of Incorporation, (2)
adopting an agreement of merger or consolidation under Section 251 or 252 of
the Delaware General Corporation Law, (3) recommending to the stockholders
the sale, lease or exchange of all or substantially all of the Corporation's
property and assets, (4) recommending to the stockholders dissolution of the
Corporation or revocation of a dissolution, or (5) amending the By-Laws; nor
shall it have any power or authority which the Board of Directors has by
resolution withheld from it. Vacancies in the membership of the Committee
shall be filled by the Board of Directors at a regular meeting or a special
meeting called for that purpose.
Section 2. The Committees of the Board shall be governed by
Subsection (2) of Section 141(c) of the Delaware General Corporation Law
which provides for the designation of committees of the Corporation's Board
of Directors and the permissible functions of such committees.
Section 3. The Board of Directors by resolution or resolutions
adopted by a majority of the Board of Directors may designate other
committees, each committee to consist of two or more directors of the
Corporation and to exercise such powers and duties and to have such name as
may be designated by resolution adopted by the Board of Directors.
Section 4. Each committee of the Board of Directors may meet at
such stated times and/or upon call with such notice as said committee may by
resolution provide from time to time. At all meetings of each committee, a
majority of members thereof shall be necessary and sufficient to constitute a
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quorum for the transaction of business, and the act of a majority of the
members present at any meeting at which there is a quorum shall be the act of
the committee.
Section 5. Committees of the Board of Directors shall keep regular
minutes of their proceedings. Any action required or permitted to be taken
at any meeting of the Committee may be taken without a meeting if prior to
such action a written consent thereto is signed by all members of the
Committee and such written consent is filed with the minutes of proceedings
of the Committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
Section 1. Directors may, pursuant to resolution of the Board of
Directors, be paid a stated sum with respect to each regular and special
meeting of the Board of Directors and be allowed their expenses of
attendance, if any, for attending each meeting of the Board of Directors.
Directors who are not full-time employees of the Corporation may be paid such
additional compensation for their services as directors as may from time to
time be fixed by resolution of the Board of Directors. Nothing herein
contained shall be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2. Members of the Executive Committee and members of other
committees of the Board of Directors who are not full-time employees of the
Corporation may, pursuant to resolution of the Board of Directors, be paid a
stated sum for attending meetings of such committees. All members of
committees of the Board of Directors may, pursuant to resolution of the Board
of Directors, be allowed their expenses of attendance, if any, for attending
meetings of such committees.
ARTICLE VII
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Annual meetings of the Board of Directors shall be held
at such place within or without the State of Delaware as soon as practicable
following the election of new directors at the annual meeting of the
stockholders.
Section 2. Regular meetings of the Board of Directors may be held
at such time and place, within or without the State of Delaware as shall from
time to time be determined by the Board of Directors. After there has been
such determination and notice thereof has been once given to each member of
the Board of Directors, regular meetings may be held without any further
notice being given.
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Section 3. Special meetings of the Board of Directors may be
called by the Chief Executive Officer on twenty-four hour's notice to each
director, either personally or by mail or by telegram; special meetings shall
be called by the Chief Executive Officer or Secretary in like manner and on
like notice on the written request of a majority of the directors.
Section 4. At all meetings of the Board of Directors, a majority
of the directors shall be necessary and sufficient to constitute a quorum for
the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the
Board of Directors, except as may be otherwise specifically provided by
statute or by the Certificate of Incorporation or by these By-laws. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present.
ARTICLE VII-A
WAR AND NATIONAL EMERGENCY
Section 5. The emergency bylaws provided in this Article VII-A
shall be operative during any emergency resulting from an attack on the
United States, or during any nuclear or atomic disaster, or during the
existence of any catastrophe, or other similar emergency condition, as a
result of which a quorum of the Board of Directors cannot readily be convened
for action. To the extent not inconsistent with these emergency bylaws, the
By-Laws of the Corporation shall remain in effect during any emergency and
upon its termination these emergency bylaws shall cease to be operative.
Section 6. During any such emergency a meeting of the Board of
Directors may be called by any officer or director by giving two days' notice
thereof to such of the directors as it may be feasible to reach at the time
and by such means as may be feasible at the time. The notice shall specify
the time and the place of the meeting, which shall be the head office of the
Corporation or any other place specified in the notice. At any such meeting
three members of the then existing Board of Directors shall constitute a
quorum, which may act by majority vote.
Section 7. If the number of directors who are available to act
shall drop below three, additional directors, in whatever number is necessary
to constitute a Board of three Directors, shall be selected automatically
from the first available officers or employees in the order provided in the
emergency succession list established by the Board of Directors and in effect
at the time an emergency arises. Additional directors, beyond the minimum
number of three directors, but not more than three additional directors, may
be elected from any officers or employees on the emergency succession list.
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Section 8. The Board of Directors is empowered with the maximum
authority possible under the Delaware Corporation Law, and all other
applicable law, to conduct the interim management of the affairs of the
Corporation in an emergency in what it considers to be in the best interests
of the Corporation (including the right to amend this Article) irrespective
of the provisions of the Certificate of Incorporation or of the By-Laws.
ARTICLE VIII
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the
Board of Directors, shall include a Chief Executive Officer and a President,
and may include a Chairman of the Board (who shall be selected from the
directors then serving), one or more Vice Chairmen of the Board (who shall be
selected from the directors then serving), one or more Executive Vice
Presidents, Senior Vice Presidents, and Vice Presidents, respectively, a
General Counsel, a Secretary, one or more Assistant Secretaries, a Treasurer,
one or more Assistant Treasurers, and a Controller. Any number of offices
may be held by the same person, but if an instrument is required by law to be
executed, acknowledged or verified by two or more officers, no officer shall
execute, acknowledge or verify such instrument in more than one capacity for
such purpose.
Section 2. Without limiting the right of the Board of Directors to
choose officers of the Corporation at any time when vacancies occur or when
the number of officers is increased, the Board of Directors at the first
meeting after each annual meeting of stockholders shall choose a Chief
Executive Officer, a President and such other officers as shall be designated
at such time, including, if so designated, a Chairman of the Board, one or
more Vice Chairmen of the Board, Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents, respectively, a General Counsel, a Secretary,
one or more Assistant Secretaries, a Treasurer, one or more Assistant
Treasurers, and a Controller. None of said officers, except the Chairman of
the Board, and Vice Chairmen of the Board, need be members of the Board.
Section 3. The Board of Directors may choose such other officers
and agents as it shall deem necessary or advisable, who shall hold their
offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors, or, in
the absence of exact specification or limitation thereof by the Board of
Directors, as the Chief Executive Officer may determine from time to time.
Subject to the below provisions, each of the officers of the Corporation
elected by the Board of Directors or appointed by an officer in accordance
with these By-Laws shall have the powers and duties prescribed by law, by the
By-Laws or by the Board of Directors and, in the case of appointed officers,
the powers and duties prescribed by the appointing officer, and, unless
otherwise prescribed by the By-Laws or by the Board of Directors or such
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appointing officer, shall have such further powers and duties as ordinarily
pertain to that office.
Section 4. The salaries of all officers of the Corporation and of
its wholly owned subsidiaries, other than his own salary, shall be determined
by the Chief Executive Officer but shall be reviewed from time to time by an
Executive Compensation Committee appointed by the Board of Directors from
among its members. The Executive Compensation Committee shall recommend to
the Board of Directors such changes in the officers' salaries as fixed by the
Chief Executive Officer as it may deem appropriate and the Board of Directors
shall instruct the Chief Executive Officer to implement those of the
recommended changes which it approves. The salary of the Chief Executive
Officer shall be determined by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify in their stead. Any officer elected
or appointed by the Board of Directors may be removed at any time with or
without cause by the affirmative vote of a majority of the whole Board of
Directors.
ARTICLE IX
CHAIRMAN OF THE BOARD
Section 1. The Chairman of the Board shall do and perform such
duties as may from time to time be assigned to him by the Board of Directors
or the Chief Executive Officer.
ARTICLE X
CHIEF EXECUTIVE OFFICER
Section 1. The Chief Executive Officer shall preside at all
meetings of the stockholders and of the Board of Directors, and shall be a
member, ex officio, of all committees, except the Audit, Finance, Stock
Option and Executive Compensation committees. The Chief Executive Officer
shall have general and active management of the business of the Corporation,
and shall see that all orders and resolutions of the Board of Directors and
of the committees thereof are carried into effect.
Section 2. The Chief Executive Officer shall have authority, which
he may delegate, to execute certificates of stock, bonds, deeds, powers of
attorney, mortgages and other contracts, under the seal of the Corporation,
unless required by law to be otherwise signed and executed and unless the
signing and execution thereof shall be expressly and exclusively delegated by
the Board of Directors to some other officer or agent of the Corporation.
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ARTICLE XI
VICE CHAIRMAN OF THE BOARD
Section 1. In the absence of the Chief Executive Officer, the Vice
Chairman (or, if there exists more than one Vice Chairman, the Vice Chairman
designated by the Board of Directors) shall serve as the Chief Executive
Officer of the Corporation. The Vice Chairmen of the Board shall advise and
counsel with the Chief Executive Officer and with other officers of the
Corporation, and each shall do and perform such other duties as may from time
to time be assigned to him by the Board of Directors or the Chief Executive
Officer.
Section 2. Any Vice Chairman of the Board, to the extent delegated
by the Chief Executive Officer or the Board of Directors, may execute
certificates of stock, bonds, deeds, powers of attorney, mortgages and other
contracts under the seal of the Corporation, unless required by law to be
otherwise signed and executed and unless the signing and execution thereof be
expressly delegated by the Board of Directors to some other officer or agent
of the Corporation.
ARTICLE XII
PRESIDENT
Section 1. The President shall be the chief operating officer of
the Corporation.
Section 2. The President shall have the authority, which he may
delegate, to execute certificates of stock, bonds, deeds, powers of attorney,
mortgages and other contracts, under the seal of the Corporation, unless
required by law to be otherwise signed and executed and unless the signing
and execution thereof shall be expressly and exclusively delegated by the
Board of Directors or the Chief Executive Officer to some other officer or
agent of the Corporation.
ARTICLE XIII
VICE PRESIDENTS
Section 1. There may be one or more Executive Vice Presidents, one
or more Senior Vice Presidents, and such other Vice Presidents, with or
without other such special designations, as may be elected by the Board of
Directors from time to time.
Section 2. The Executive Vice Presidents and each of the Vice
Presidents shall have the authority to sign certificates of stock, bonds,
deeds, mortgages and other contracts, unless required by law to be otherwise
signed and executed and unless the signing and execution thereof shall be
expressly and exclusively delegated by the Board of Directors or the Chief
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Executive Officer to some other officer or agent of the Corporation, and
perform such duties and exercise such powers as the Board of Directors or the
Chief Executive Officer shall prescribe.
ARTICLE XIV
SECRETARY
Section 1. The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for all committees of the Board of Directors when
required. He shall give, or cause to be given, all required notices of all
meetings of the stockholders and of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or the Chief
Executive Officer, under whose supervision he shall be. He shall be
responsible for keeping in safe custody the seal of the Corporation, and when
such is proper, he shall affix the same to any instrument requiring it, and
when so affixed, it shall be attested by his signature or by the signature of
an Assistant Secretary.
Section 2. The Assistant Secretaries in the absence or disability
of the Secretary shall perform and exercise the powers of the Secretary and
shall perform such further duties as may be prescribed by the Secretary, the
Board of Directors or the Chief Executive Officer.
ARTICLE XV
TREASURER
Section 1. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of
Directors or the Chief Executive Officer.
Section 2. The Treasurer shall: (a) endorse or cause to be
endorsed in the name of the Corporation for collection the bills, notes,
checks or other negotiable instruments received by the Corporation, (b) sign
or cause to be signed all bills, notes, checks or other negotiable
instruments issued by the Corporation and (c) pay out or cause to be paid out
money, as the Corporation may require, taking proper vouchers therefor;
provided, however, that the Board of Directors and the Chief Executive
Officer may by resolution delegate, with or without power to re-delegate, any
and all of the foregoing duties of the Treasurer to other officers, employees
or agents of the Corporation, and to provide that other officers, employees
and agents shall have power to sign bills, notes, checks, vouchers, orders,
or other instruments on behalf of the Corporation. The Treasurer shall
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render to the Chief Executive Officer and to the Board of Directors, whenever
they may require it, an account of his transactions as Treasurer.
Section 3. The Treasurer shall give the Corporation a bond if
required by the Board of Directors in a sum, and with one or more sureties
satisfactory to the Board, for the faithful performance of the duties of his
office and for the restoration of the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation.
Section 4. The Assistant Treasurers in the absence or disability
of the Treasurer shall perform and exercise the powers of the Treasurer and
shall perform such further duties as may be prescribed by the Treasurer, the
Board of Directors or the Chief Executive Officer.
ARTICLE XVI
CONTROLLER
Section 1. The Controller shall have charge of the Corporation's
books of account, records and auditing, and shall be subject in all matters
to the control of the Board of Directors and the Chief Executive Officer.
ARTICLE XVII
VACANCIES AND DELEGATION OF DUTIES OF OFFICERS
Section 1. If the office of any officer or agent, one or more,
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office, or otherwise, the Board of Directors may choose a
successor or successors, who shall, unless the Board of Directors otherwise
specifies, hold office for the unexpired term in respect of which such
vacancy occurred, or until his successor shall be elected.
Section 2. In case of the absence of any officer of the
Corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may delegate, for the time being, the
powers or duties, or any of them, of such officer to any other officers
and/or directors; provided a majority of the entire Board of Directors
concurs therein.
ARTICLE XVIII
STOCK AND STOCKHOLDERS
Section 1. The shares of stock of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide
by resolution or resolutions that some or all of any or all classes or series
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of the Corporation's stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption
of such a resolution by the Board of Directors, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate as provided in Article XVIII,
Section 2 of these By-Laws, or as otherwise permitted by law, representing
the number of shares registered in certificate form.
Section 2. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as they are
issued. They shall exhibit the holder's name and number of shares and shall
be signed by the Chairman of the Board, Chief Executive Officer, Vice
Chairman of the Board, President or a Vice President, and the Secretary or an
Assistant Secretary. Any and all signatures on a stock certificate may be a
facsimile.
Section 3. Upon surrender to the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation will issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Transfers of uncertificated shares
will be made on the records of the Corporation as may be provided by law.
Section 4. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person whether
or not it shall have express or other notice thereof, except as expressly
provided by the laws of Delaware.
Section 5. A new certificate of stock of the Corporation may be
issued in place of any certificate theretofore issued by the Corporation and
alleged to have been lost, stolen or destroyed.
The Board of Directors may from time to time prescribe the terms
and conditions under which such new certificates may be issued. Among other
things, the Board of Directors may require that the owner of the allegedly
lost, stolen or destroyed certificate, or his legal representatives, submit
proper evidence in writing and under oath that the alleged loss, theft, or
destruction actually occurred, and may require that such owner or
representatives give the Corporation a bond, satisfactory to the Corporation
as to form and security, sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of any such new
certificate. A new certificate may be issued without requiring any bond
when, in the judgment of the Board of Directors or of any officer of the
Corporation to whom the Board of Directors may delegate appropriate
authority, it is proper to waive the bond requirement.
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ARTICLE XIX
INSPECTION OF BOOKS, CHECKS AND FISCAL YEAR
Section 1. The Board of Directors shall determine from time to
time whether, and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may by statute be
specifically open to inspection), or any of them, shall be open to the
inspection of the stockholders, and the stockholders' rights in this respect
are and shall be restricted and limited accordingly.
Section 2. Checks or demands for money and notes of the
Corporation may be signed by such officer or officers or such person or
persons other than those herein authorized and in such manner as the Board of
Directors or the Chief Executive Officer may from time to time provide.
Section 3. The fiscal year shall begin the first day in January of
each year and end the following December 31.
ARTICLE XX
DIRECTORS' ANNUAL STATEMENT
Section 1. The Board of Directors shall present at each annual
meeting a full and clear statement of the business and condition of the
Corporation.
ARTICLE XXI
NOTICES
Section 1. Whenever under the provisions of the Certificate of
Incorporation or of these By-Laws notice (which as herein used shall include
also annual reports, proxy statements and solicitations and other
communications to holders of the Corporation's securities) is required to be,
or may be, given to any director, officer, stockholder or other person, it
may, unless legally controlling provisions prohibit the same, be given in
writing, by mail, by depositing the same in any U.S. post office or
letter-box, in a postpaid sealed wrapper addressed to such person to whom the
notice may be, or is required to be given, at such address as appears on the
books of the Corporation, and all notices given in accordance with the
provisions of this Article shall be deemed to be given at the time when the
same shall be thus mailed.
Section 2. Should a person who is a stockholder own shares
evidenced by more than one stock certificate, nevertheless only one notice
(when any is required to be, or may be, given to holders of shares of any or
all classes) shall be, in the sole discretion of the Corporation, required to
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be mailed and if different addresses as to such person are recorded on the
Corporation's stock ledger the notice may be mailed to the address that
appears to have been given latest in time unless the stockholders shall have
expressly directed otherwise in writing to the Secretary of the Corporation,
nor shall variations in the designation of the name or identity of any one
stockholder require the mailing of more than one notice to any one
stockholder, which may be mailed to any one of the names or designations that
may so appear in the Corporation's stock ledger with respect to such
stockholder; and, at the sole discretion of the Corporation, the distribution
of dividend payments may be, unless a stockholder shall expressly request
multiple distributions strictly in accordance with the stock ledger record of
his multiple ownerships, handled in accordance with or so as not to be
repugnant to the purpose of the above provisions, which is to avoid the
expenditure by the Corporation of effort, time and expense in such matters
that might have been avoided had the recording of a stockholder's name and/or
address incident to his multiple record ownership of shares been effected
accurately, uniformly and consistently.
Section 3. Any stockholder, director or officer may waive in
writing or otherwise any notice required to be given under the provisions of
pertinent statutes or of the Certificate of Incorporation or of these By-
Laws. A waiver of notice in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent to such notice.
ARTICLE XXII
INDEMNIFICATION
Section 1. The Corporation shall, to the full extent permitted by
the Laws of the State of Delaware as then in effect or, if less stringent, in
effect on December 31, 1985 ("Delaware Law"), indemnify any person (the
"Indemnitee") made or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether or not by or in the right of the
Corporation, by reason of the fact that the Indemnitee is or was a director,
officer or employee of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee, trustee, partner, or other
agent of any other enterprise or legal person (any such action, suit or
proceeding being herein referred to as a "Legal Action") against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with such
Legal Action or its investigation, defense or appeal (herein called
"Indemnified Expenses"), if the Indemnitee has met the standard of conduct
necessary under Delaware Law to permit such indemnification. Rights to
indemnification shall extend to the heirs, beneficiaries, administrators and
executors of any deceased Indemnitee.
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For purposes of this Section, reference to "any other enterprise or
legal person" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries.
The Indemnified Expenses shall be paid by the Corporation in
advance as shall be appropriate to permit Indemnitee to defray such expenses
currently as incurred, provided the Indemnitee agrees in writing that in the
event it shall ultimately be determined as provided hereunder that Indemnitee
was not entitled to be indemnified, then Indemnitee shall promptly repay to the
Corporation such amounts so paid. The prepayment of expenses as provided for
in this Section 1 shall be authorized by the Board of Directors in the specific
case unless the Board of Directors receives within thirty (30) days of the
Indemnitee's request for indemnification an opinion of counsel selected in the
manner provided for in Section 2 of this Article XXII that there is no
reasonable basis for a belief that the Indemnitee's conduct met the requisite
standard of conduct. The fees of such counsel and all related expenses shall,
in all cases, be paid by the Corporation.
Section 2. The determination of whether Indemnitee has met the
standard of conduct required to permit indemnification under this By-Law
shall in the first instance be submitted to the Board of Directors of the
Corporation. If the Board by a majority vote of a quorum consisting of
directors who were not parties to such Legal Action determines Indemnitee has
met the required standard of conduct such determination shall be conclusive;
but if such affirmative majority vote is not given, then the matter shall be
referred to independent legal counsel for determination. Such outside
counsel shall be selected by agreement of the Board of Directors and
Indemnitee or, if they are unable to agree, then by lot from among those New
York City law firms which (i) have more than 100 attorneys, (ii) have a
substantial practice in the corporate and securities areas of law, (iii) have
not performed any services for the Corporation or any of its subsidiaries or
affiliates for at least five (5) years and (iv) have a rating of "av" in the
then current Xxxxxxxxxx-Xxxxxxx Law Directory. The fees and expenses of
counsel in connection with making this determination shall be paid by the
Corporation.
Notwithstanding the foregoing, if dissatisfied with the
determination so made by counsel, Indemnitee may within two (2) years
thereafter, petition any court of competent jurisdiction to determine whether
Indemnitee is entitled to indemnification under the provisions hereof and
such court shall thereupon have the exclusive authority to make such
determination. The Corporation shall pay all expenses (including attorneys'
fees) actually incurred by Indemnitee in connection with such judicial
determination.
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The termination of any Legal Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the Indemnitee did not meet the
requisite standard of conduct; however, a successful defense of a Legal
Action by Indemnitee on the merits or otherwise shall conclusively establish
Indemnitee did meet such standard of conduct notwithstanding any previous
determination to the contrary under thin Section 2.
Section 3. The indemnification and advance payment of expenses as
provided in this Article XXII shall not be deemed exclusive of any other
rights to which Indemnitee may be entitled under any provision of law, the
Certificate of Incorporation, any By-Law or otherwise.
Section 4. If any provision of this Article XXII shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, the validity,
legality and enforceability of the remaining provisions of this Article XXII
shall not in any way be affected or impaired thereby.
Section 5. Any amendment, repeal or modification of these By-Laws,
the Corporation's Certificate of Incorporation or any applicable provision of
Delaware Law, or any other instrument, which eliminates or diminishes the
indemnification rights provided for in this Article XXII shall be ineffective
as against an Indemnitee with respect to any Legal Action based upon actions
taken or not taken by the Indemnitee prior to such repeal or the adoption of
such modification or amendment. The provisions of this By-Law shall be
applicable to all Legal Actions made or commenced after the adoption hereof,
whether arising from acts or omissions to act occurring before or after its
adoption. The provisions of this By-Law shall be deemed to be a contract
between the Corporation and each director or officer who serves in such
capacity at any time while this By-Law and the relevant provisions of
Delaware Law and other applicable law, if any, are in effect. If any
provision of this By-Law shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect the
validity of the remaining provisions hereof. The rights of indemnification
provided in this By-Law shall neither be exclusive of, nor be deemed in
limitation of, any rights to which an officer, director, employee or agent
may otherwise be entitled or permitted by contract, this By-Law, vote of
stockholders or directors or otherwise, or as a matter of law, both as to
actions in such person's official capacity and actions in any other capacity
while holding such office, it being the policy of the Corporation that
indemnification of any person whom the Corporation is obligated to indemnify
pursuant to this By-Law shall be made to the fullest extent permitted by law.
ARTICLE XXIII
AMENDMENTS
Section 1. These By-Laws may be altered or amended or repealed, in
whole or in part: By the affirmative vote of the holders of a majority of
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the stock issued and outstanding and entitled to a vote thereat, at any
regular or special meeting of the stockholders, or by the affirmative vote of
a majority of the Board of Directors in attendance at any regular or special
meeting of the Board of Directors; provided, however, that, notwithstanding
any other provisions of these By-Laws or any provision of law which might
otherwise permit a lesser vote of the stockholders, the affirmative vote of
the holders of at least 75 percent in voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required in order for the stockholders
to alter, amend or repeal Section 8 and Section 11 of Article III, Sections 2
and 6 of Article IV or this proviso to this Article XXIII of these By-Laws or
to adopt any provision inconsistent with any of such Sections or with this
proviso.
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Exhibit 5.11
To the Merger Agreement
FORM OF ORYX AFFILIATE'S LETTER
___________, 199_
Xxxx-XxXxx Corporation
000 Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Pursuant to the terms of the Agreement and Plan of Merger, dated as
of October 14, 1998 (the "Merger Agreement"), between Xxxx-XxXxx Corporation
("Xxxx-XxXxx") and Oryx Energy Company ("Oryx"), Oryx shall be merged with
and into Xxxx-XxXxx (the "Merger"), and each share of common stock, par value
$1.00 per share, of Oryx ("Oryx Common Stock") issued and outstanding after
giving effect to the Reverse Split and immediately prior to the Effective
Time shall be converted into the right to receive one share of common stock,
par value $1.00 per share, of Xxxx-XxXxx ("Xxxx-XxXxx Common Stock").
Capitalized terms used herein and not defined have the meanings assigned to
them in the Merger Agreement.
The undersigned has been advised that as of the date the Merger is
submitted to stockholders of Oryx for approval, the undersigned may be an
"affiliate" of Oryx, (i) as the term is defined for purposes of paragraph (c)
of Rule 145 of the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), and (ii)
for purposes of qualifying the Merger for pooling of interests accounting
treatment under Opinion 16 of the Accounting Principles Board and Accounting
Series Releases 130 and 135, as amended, of the Commission, although nothing
contained herein shall be construed as an admission of either such fact, or
as a waiver of any rights that the undersigned may have to object to any
claim that the undersigned is such an affiliate on or after the date of this
letter.
The undersigned hereby represents, warrants and covenants with and
to Xxxx-XxXxx that if the undersigned receives any Xxxx-XxXxx Common Stock as
a result of the Merger:
(A) The undersigned will not sell, transfer or otherwise dispose
of such Xxxx-XxXxx Common Stock unless (i) such sale, transfer or other
disposition has been registered under the Securities Act, (ii) such
sale, transfer or other disposition is made in conformity with the
provisions of Rule 145 under the Securities Act (as such rule may
hereafter from time to time be amended), or (iii) in the opinion of
counsel in form and substance reasonably satisfactory to Xxxx-XxXxx, or
under a "no-action" or interpretive letter obtained by the undersigned
from the Commission, such sale, transfer or other disposition will not
violate or is otherwise exempt from registration under the Securities
Act.
(B) The undersigned understands that Xxxx-XxXxx is under no
obligation to register the sale, transfer or other disposition of shares
of Xxxx-XxXxx Common Stock by the undersigned or on the undersigned's
behalf under the Securities Act.
(C) The undersigned further represents, warrants and covenants
with and to Xxxx-XxXxx that the undersigned will not sell, transfer or
otherwise dispose of his or her interests in, or reduce his or her risk
(as contemplated by Commission Accounting Series Release No. 135)
relative to, any shares of Oryx Common Stock or Xxxx-XxXxx Common Stock
beneficially owned by the undersigned during the period commencing 30
days prior to the Effective Time and ending at such time as Xxxx-XxXxx
notifies the undersigned that results covering at least 30 days of
combined operations of Xxxx-XxXxx after the Merger have been published
by Xxxx-XxXxx, which Xxxx-XxXxx agrees to publish in accordance with the
terms of the Merger Agreement, in the form of a quarterly earnings
report, an effective registration statement filed with the Commission, a
report to the Commission on Form 10-K, 10-Q or 8-K, or any other public
filing or announcement which includes the results of such combined
operations.
(D) The undersigned understands and agrees that this letter
agreement shall apply to all shares of the capital stock of Oryx and
Xxxx-XxXxx that are deemed to be beneficially owned by the undersigned
pursuant to applicable federal securities laws.
(E) The undersigned has carefully read this letter and discussed
its requirements and other applicable limitations upon the undersigned's
ability to sell, transfer or otherwise dispose of the capital stock of
Oryx or Xxxx-XxXxx, to the extent the undersigned felt necessary, with
the undersigned's counsel or counsel for Oryx.
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This letter agreement shall be governed and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed therein.
This letter agreement shall terminate if and when the Merger
Agreement is terminated according to its terms.
Very truly yours,
_____________________
Name:
[add below the signatures of all
registered owners of shares deemed
beneficially owned by the affiliate]
_____________________
Name:
_____________________
Name:
_____________________
Name:
Please indicate your agreement with the foregoing by signing the
acknowledgment below and returning this letter agreement to the undersigned,
whereupon this letter agreement shall become an effective agreement between
Xxxx-XxXxx and the undersigned.
Acknowledged this ___ day of
___________, 199_.
XXXX-XxXXX CORPORATION
By:_____________________
Name:
Title:
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