EXHIBIT (e)(22)
FORM OF
OPTION RELINQUISHMENT AND RELEASE AGREEMENT
THIS OPTION RELINQUISHMENT AND RELEASE AGREEMENT, dated this __________
day of November, 2001 (this "Release"), is made and entered into by and between
DevX Energy Inc., a Delaware corporation ("DevX"), and __________, a resident of
__________ County, _________________ ("Holder").
WITNESSETH:
WHEREAS, DevX and Holder entered into one or more Stock Option
Agreements, so referenced on Exhibit A to this Release (the "Option
Agreements"), under the DevX, Inc. 1997 Incentive Stock Option Plan, pursuant to
which Holder was granted rights to purchase a specified number of shares of
common stock, par value $0.234 per share ("DevX Common Stock");
WHEREAS, DevX, Xxxxxxxx Resources, Inc., a Nevada corporation
("Parent"), and Xxxxxxxx Acquisition, Inc., a Delaware corporation and wholly
owned subsidiary of Parent ("Purchaser"), have entered into that certain
Agreement and Plan of Merger, dated as of November 12, 2001,(the "Merger
Agreement"), pursuant to which (i) Purchaser has agreed to initiate a tender
offer (the "Tender Offer") to acquire all outstanding shares of DevX Common
Stock for the Per Share Amount (as defined in the Merger Agreement) and (ii)
following completion of the Tender Offer DevX, Parent and Purchaser have agreed
to effect a merger of Purchaser with and into DevX upon the satisfaction or
waiver of certain conditions set forth in the Merger Agreement;
WHEREAS, the parties to the Merger Agreement desire that, upon the
consummation of the tender offer contemplated by the Merger Agreement, (i)
holders of each share of DevX Common Stock properly tendered pursuant to the
terms of the tender offer receive the Per Share Amount in cash, as set forth in
Article II of the Merger Agreement and (ii) each outstanding option to purchase
DevX Common Stock be converted into the right to receive the cash amount equal
to the product of (A) the number of shares of DevX Common Stock subject to such
option (irrespective of whether such option is then exercisable) and (B) the
amount by which the Per Share Amount exceeds the exercise or strike price per
share of DevX Common Stock subject to such option immediately prior to the Share
Acceptance Date (as defined in the Merger Agreement); and
WHEREAS, the parties to this Release desire that in consideration for
the total cash consideration set forth on Exhibit A to this Release (such cash
consideration, net of applicable withholdings, being the "Option Merger
Consideration") payable to Holder pursuant to the terms of the Merger Agreement,
Holder will (i) transfer to DevX all of Holder's rights under the Option
Agreements to acquire DevX Common Stock, and (ii) release all existing or
potential claims under the Option Agreements and the related stock option plans.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree, subject to and effective upon the
consummation of the tender offer contemplated by the Merger Agreement, as
follows:
1. Relinquishment.
In consideration for, and effective upon, the receipt by Holder of the
Option Merger Consideration pursuant to the terms of this Release, Holder does
hereby relinquish any and all rights of Holder under the Option Agreements and
any other agreement or plan to acquire (i) DevX Common Stock or (ii) any other
equity security of DevX or any affiliate thereof, except as otherwise indicated
on Exhibit A. The receipt by Holder of the Option Merger Consideration shall
constitute complete and full payment for the relinquishment of all rights of
Holder under the Option Agreements and any other agreement and plan to acquire
(i) DevX Common Stock or (ii) any other equity security of DevX or any affiliate
thereof, except as otherwise indicated on Exhibit A. Holder hereby represents
and warrants to DevX that, except as otherwise indicated on Exhibit A, the
Option Agreements are the only agreements or understandings between Holder and
DevX or any affiliate of DevX pertaining to the grant by DevX (or any affiliate
of DevX) of any right, option or warrant to acquire (i) DevX Common Stock or
(ii) any other equity security of DevX or any affiliate thereof; provided,
however, that nothing in this Release shall be deemed a release or termination
of any other agreement between DevX and Holder or any other rights under
policies and benefits of DevX applicable to Holder. All payments of Option
Merger Consideration hereunder shall be subject to withholding for federal
income taxes and FICA taxes.
2. Release.
Holder for himself and his successors and assigns hereby releases,
acquits, and forever discharges DevX and DevX's respective past and future
subsidiaries, affiliates, employees, officers, directors, stockholders, agents,
representatives, successors and assigns (collectively, the "Released Parties")
of and from any and all actions, causes of action, suits, claims, demands,
judgments, damages, obligations and liabilities of any kind, at law or in
equity, known or unknown, which Holder had, now has, or hereafter may have
against the Released Parties, or any of them, under the Option Agreements or any
other agreement or plan to acquire (i) DevX Common Stock or (ii) any other
equity security of DevX or any affiliate thereof, except as otherwise indicated
on Exhibit A; provided, however, that nothing in this Release shall be deemed a
release or termination of any other agreement between DevX and Holder or any
other rights under policies and benefits of DevX applicable to Holder.
-2-
3. Third Party Beneficiary.
The parties hereto understand and hereby acknowledge that Parent and
Purchaser are (i) consummating the transactions contemplated in the Merger
Agreement in reliance upon the execution and delivery of this Release and (ii)
third party beneficiaries to this Release, and shall be entitled to rely upon
and to enforce each of the respective agreements, rights and obligations
hereunder to the same extent as if Parent and Purchaser were parties hereto.
4. Separate Representation.
The Holder hereby acknowledges that (i) Holder has not been represented
by Xxxxxx and Xxxxx, L.L.P. or any other counsel or advisors engaged by DevX in
connection with this Release or any other agreements or issues related to the
transactions contemplated in the Merger Agreement, (ii) Holder has had
sufficient time and opportunity to review this Release and all other documents
affecting his or her interests in connection with the transactions contemplated
in the Merger Agreement, and (iii) Holder has been advised to engage and consult
separate counsel in connection with this Release and all other agreements or
issues related to the transactions contemplated in the Merger Agreement.
5. CHOICE OF LAW.
THE VALIDITY OF THIS RELEASE, THE CONSTRUCTION OF ITS TERMS AND THE
DETERMINATION OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF
TEXAS, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THERETO.
6. Jurisdiction and Venue.
Any judicial proceeding brought by or against any of the parties to
this Release on any dispute arising out of this Release shall be brought in the
state or federal courts of Dallas County, Texas, and by execution and delivery
of this Release, each of the parties hereto accepts the exclusive jurisdiction
and venue of the aforesaid courts and agrees to be bound by any judgment
rendered thereby in connection with this Release after exhaustion of all appeals
(or by the appropriate appellate court if such appellate court renders
judgment).
7. Binding Nature.
This Release shall bind and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns.
-3-
8. Counterparts.
This Release may be executed in multiple counterparts, each of which
shall be deemed an original for all purposes and all of which shall be deemed
collectively to be one agreement, but in making proof hereof it shall only be
necessary to exhibit one such counterpart.
IN WITNESS WHEREOF, each of the parties hereto has caused this Release
to be executed effective as of the date first above written.
DEVX ENERGY, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
HOLDER:
-----------------------------------------
Name
-4-
SPOUSAL RELEASE
I, _______________________________, am the spouse of Holder. I have
read and understand this Release and the documents referred to herein, and I
hereby agree to all of the terms of this Release and release any and all claims
that I may have against DevX or any affiliate thereof arising from the Option
Agreements or any other agreement or plans to acquire (i) DevX Common Stock or
(ii) any other equity security of DevX or any affiliate thereof (except as
otherwise indicated on Exhibit A).
SPOUSE:
----------------------------------------
(If not married, please xxxx
"Not Applicable" on this line)
-5-
EXHIBIT A
NAME OF HOLDER:
--------------------
MERGER PRICE MINUS
DATE OF NUMBER OF OPTIONS EXERCISE PRICE PER CONSIDERATION PAYABLE
GRANT OUTSTANDING EXERCISE PRICE OPTION OUTSTANDING TO HOLDER
------- ----------------- -------------- ------------------ ---------------------
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
$ $ $
TOTAL $
Other agreements or understandings between Holder and DevX or any affiliate of
DevX pertaining to the grant by DevX (or any affiliate of DevX) of any right,
option or warrant to acquire Common Stock or any other equity security of DevX
or any affiliate of DevX:
NONE
