EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 4, 2001
BY AND AMONG
XXXXXXXX PETROLEUM COMPANY,
PING ACQUISITION CORP.
AND
TOSCO CORPORATION
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS...........................................1
ARTICLE II THE MERGER....................................................7
2.1 The Merger....................................................7
2.2 Effective Time of the Merger..................................7
2.3 Effects of the Merger.........................................7
2.4 Closing.......................................................8
2.5 Articles of Incorporation.....................................8
2.5 By-Laws.......................................................8
2.6 Directors and Officers........................................8
ARTICLE III CONVERSION OF SECURITIES......................................8
3.1 Exchange Ratio................................................8
3.2 Stock Options and Other Equity-Based Awards...................9
3.3 Exchange Fund................................................10
3.4 Exchange Procedures..........................................10
3.5 Distributions with Respect to Unexchanged Shares.............11
3.6 No Further Ownership Rights in Tosco Common Stock............11
3.7 No Fractional Shares of Xxxxxxxx Common Stock................12
3.8 Termination of Exchange Fund.................................12
3.9 No Liability.................................................13
3.10 Investment of the Exchange Fund..............................13
3.11 Lost Certificates............................................13
3.12 Withholding Rights...........................................13
3.13 Further Assurances...........................................13
3.14 Stock Transfer Books.........................................13
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................14
4.1 Representations and Warranties of Tosco......................14
(a) Corporate Organization...................................14
(b) Capitalization...........................................14
(c) Authority; No Violation..................................15
(d) Consents and Approvals...................................16
(e) Financial Reports and SEC Documents......................16
(f) Absence of Undisclosed Liabilities.......................17
(g) Absence of Certain Changes or Events.....................17
(h) Legal Proceedings........................................17
(i) Compliance with Applicable Law...........................18
(j) Contracts................................................18
(k) Environmental Liability..................................18
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(l) Employee Benefit Plans; Labor Matters....................19
(m) Intellectual Property....................................20
(n) State Takeover Laws; Rights Plan.........................20
(o) Opinion of Financial Advisor.............................20
(p) Board Approval...........................................21
(q) Broker's Fees............................................21
(r) Taxes....................................................21
(s) Reorganization under the Code............................22
(t) Form S-4; Joint Proxy Statement/Prospectus...............22
4.2 Representations and Warranties of Xxxxxxxx...................22
(a) Corporate Organization...................................22
(b) Capitalization...........................................23
(c) Authority; No Violation..................................23
(d) Consents and Approvals...................................24
(e) Financial Reports and SEC Documents......................25
(f) Absence of Undisclosed Liabilities.......................25
(g) Absence of Certain Changes or Events.....................25
(h) Legal Proceedings........................................26
(i) Compliance with Applicable Law...........................26
(j) Environmental Liability..................................26
(k) Employee Benefit Plans; Labor Matters....................26
(l) State Takeover Laws......................................27
(m) Opinion of Financial Advisor.............................27
(n) Board Approval...........................................27
(o) Broker's Fees............................................27
(p) Taxes....................................................27
(q) Reorganization under the Code............................28
(r) Form S-4; Joint Proxy Statement/Prospectus...............28
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS....................28
5.1 Covenants of Tosco...........................................28
(a) Ordinary Course..........................................29
(b) Dividends; Changes in Share Capital......................29
(c) Issuance of Securities...................................29
(d) Governing Documents......................................30
(e) No Acquisitions..........................................30
(f) No Dispositions..........................................30
(g) Investments; Indebtedness................................30
(h) Tax-Free Qualification...................................30
(i) Compensation.............................................31
(j) Accounting Methods; Tax Elections........................31
(k) Certain Actions..........................................31
(l) No Related Actions.......................................31
5.2 Covenants of Xxxxxxxx........................................31
(a) Ordinary Course..........................................31
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(b) Dividends, Changes in Share Capital......................31
(c) Governing Documents......................................32
(d) No Acquisitions..........................................32
(e) Tax-Free Qualification...................................32
(f) Certain Actions..........................................32
(g) No Related Actions.......................................32
5.3 Governmental Filings.........................................32
5.4 Control of Other Party's Business............................33
ARTICLE VI ADDITIONAL AGREEMENTS........................................33
6.1 Preparation of Proxy Statement; Stockholders Meetings........33
6.2 Xxxxxxxx Board of Directors and Officers; RM&T Headquarters..34
6.3 Access to Information........................................35
6.4 Reasonable Best Efforts......................................35
6.5 Acquisition Proposals........................................37
6.6 Fees and Expenses............................................38
6.7 Directors' and Officers' Indemnification and Insurance.......39
6.8 Employee Benefits............................................39
6.9 Public Announcements.........................................40
6.10 Listing of Shares of Xxxxxxxx Common Stock...................40
6.11 Rights Agreements............................................40
6.12 Affiliates...................................................41
6.13 Section 16 Matters...........................................41
6.14 Xxxxxxxx Indebtedness and Tosco Indebtedness.................41
6.15 Accountants' Letters.........................................41
ARTICLE VII CONDITIONS PRECEDENT.........................................42
7.1 Conditions to Each Party's Obligation to Effect the Merger...42
(a) Stockholder Approval.....................................42
(b) No Injunctions or Restraints; Illegality.................42
(c) HSR Act; Other Approvals.................................42
(d) NYSE Listing.............................................42
(e) Effectiveness of the Form S-4............................42
7.2 Additional Conditions to Obligations of Xxxxxxxx.............42
(a) Representations and Warranties...........................42
(b) Performance of Obligations of Tosco......................43
(c) Tax Opinion..............................................43
7.3 Additional Conditions to Obligations of Tosco................43
(a) Representations and Warranties...........................43
(b) Performance of Obligations of Xxxxxxxx...................43
(c) Tax Opinion..............................................43
ARTICLE VIII TERMINATION AND AMENDMENT....................................44
8.1 Termination..................................................44
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8.2 Effect of Termination........................................46
8.3 Amendment....................................................47
8.4 Extension; Waiver............................................47
ARTICLE IX GENERAL PROVISIONS...........................................47
9.1 Non-Survival of Representations, Warranties and Agreements...47
9.2 Notices......................................................48
9.3 Interpretation...............................................48
9.4 Counterparts.................................................49
9.5 Entire Agreement; No Third Party Beneficiaries...............49
9.6 Governing Law................................................49
9.7 Severability.................................................49
9.8 Assignment...................................................49
9.9 Submission to Jurisdiction; Waivers..........................49
9.10 Enforcement..................................................50
LIST OF EXHIBITS
Exhibit Title
Exhibit A Form of Affiliate Agreement
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AGREEMENT AND PLAN OF MERGER, dated as of February 4, 2001 (this
"Agreement"), by and among XXXXXXXX PETROLEUM COMPANY, a Delaware corporation
("Xxxxxxxx"), PING ACQUISITION CORP., a Nevada corporation and wholly owned
subsidiary of Xxxxxxxx ("Merger Sub"), and TOSCO CORPORATION, a Nevada
corporation ("Tosco").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Xxxxxxxx, Merger Sub and Tosco
have approved the acquisition of Tosco by Xxxxxxxx;
WHEREAS, the Boards of Directors of Xxxxxxxx, Merger Sub and Tosco
have approved the merger of Merger Sub with and into Tosco (the "Merger"), upon
the terms and subject to the conditions set forth herein; and
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.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Acquisition Proposal" shall have the meaning set forth in Section
6.5(a)(i).
"Affiliate Agreement" shall have the meaning set forth in Section
6.12.
"Agreement" shall have the meaning set forth in the preamble.
"Assumed Indentures" shall have the meaning set forth in Section
6.14.
"beneficial ownership" or "beneficially own" shall have the meaning
ascribed to such terms under Section 13(d) of the Exchange Act and the rules and
regulations thereunder.
"Benefit Plan" means, with respect to any entity, any employee
benefit plan, program, policy, practice, agreement, contract or other
arrangement providing benefits to any current or former employee, officer or
director of such entity or any of its affiliates or any beneficiary or dependent
thereof that is sponsored or maintained by such entity or any of its affiliates
or to which such entity or any of its affiliates contributes or is obligated to
contribute, whether or not written, including any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA, any employee pension benefit plan
within the meaning of Section 3(2) of ERISA (whether or not such plan is subject
to ERISA), any employment or severance agreement,
and any bonus, incentive, deferred compensation, vacation, stock purchase, stock
option, severance, change of control or fringe benefit plan, program or policy.
"Business Day" means any day on which banks are not required or
authorized to close in the City of New York.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Change in the Xxxxxxxx Recommendation" shall have the meaning set
forth in Section 6.1(c).
"Change in the Tosco Recommendation" shall have the meaning set
forth in Section 6.1(b).
"Closing" shall have the meaning set forth in Section 2.4.
"Closing Date" shall have the meaning set forth in Section 2.4.
"Code" shall have the meaning set forth in the recitals.
"Confidentiality Agreement" shall have the meaning set forth in
Section 6.3.
"Controlled Group Liability" means any and all liabilities (i) under
Title IV of ERISA, other than for payment of premiums to the Pension Benefit
Guaranty Corporation, (ii) under Section 302 of ERISA, (iii) under Sections 412
and 4971 of the Code, (iv) for violation of the continuation coverage
requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or
the group health requirements of Sections 701 et seq. of the Code and Sections
701 et seq. of ERISA, and (v) under corresponding or similar provisions of
foreign laws or regulations.
"DOJ" means the Antitrust Division of the U.S. Department of
Justice.
"Effective Time" shall have the meaning set forth in Section 2.2.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Excess Shares" shall have the meaning set forth in Section 3.7.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Agent" shall have the meaning set forth in Section 3.3.
"Exchange Fund" shall have the meaning set forth in Section 3.3.
"Exchange Ratio" shall have the meaning set forth in Section 3.1(b).
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"Expenses" means all out-of-pocket expenses (including all fees and
expenses of counsel, accountants, investment bankers, experts and consultants to
a party 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 and the transactions contemplated hereby,
including the preparation, printing, filing and mailing of the Joint Proxy
Statement/Prospectus and the Form S-4 and the solicitation of stockholder
approvals and all other matters related to the transactions contemplated hereby
and thereby.
"Form S-4" shall have the meaning set forth in Section 4.1(d)(iii).
"FTC" means the U.S. Federal Trade Commission.
"GAAP" means U.S. generally accepted accounting principles.
"Governmental Entity" shall have the meaning set forth in Section
4.1(d).
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Intellectual Property" means all patents, trademarks, trade names,
service marks, copyrights, and any applications therefor, technology, know-how,
computer software programs or applications, and tangible or intangible
proprietary information or materials.
"Joint Proxy Statement/Prospectus" shall have the meaning set forth
in Section 4.1(d)(iii).
"knowledge" or "known" means, with respect to any entity, the
knowledge of such entity's executive officers after reasonable inquiry.
"Liens" shall have the meaning set forth in Section 4.1(b)(ii).
"Material Adverse Effect" means, with respect to any entity, a
material adverse effect on (i) the business, operations, results of operations
or financial condition of such entity and its Subsidiaries taken as a whole or
(ii) the ability of such entity to timely consummate the transactions
contemplated by this Agreement, except, in each case, for any such effect
reasonably attributable to (x) general economic conditions in the United States
(including prevailing interest rate and stock market levels), (y) the general
state of the industries in which such entity operates or (z) the negotiation,
announcement, execution, delivery or consummation of the transactions
contemplated by, or in compliance with, this Agreement.
"Merger" shall have the meaning set forth in the recitals.
"Merger Consideration" shall have the meaning set forth in Section
3.1(b).
"Merger Sub" shall have the meaning set forth in the preamble.
"Necessary Consents" shall have the meaning set forth in Section
4.1(d)(vi).
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"Nevada Articles of Merger" shall have the meaning set forth in
Section 2.2(y).
"New Plans" shall have the meaning set forth in Section 6.8(b).
"NGCL" means the Nevada General Corporation Law.
"Non-Subsidiary Affiliate" shall have the meaning set forth in
Section 4.1(b)(ii).
"NYSE" means the New York Stock Exchange, Inc.
"Old Plans" shall have the meaning set forth in Section 6.8(b)(i).
"Other Approvals" shall have the meaning set forth in Section
4.1(d)(ii).
"other party" means, with respect to Phillips, Tosco, and with
respect to Tosco, Xxxxxxxx.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the Exchange Act).
"Xxxxxxxx" shall have the meaning set forth in the preamble.
"Xxxxxxxx 1999 10-K" means Xxxxxxxx'x Annual Report on Form 10-K for
the fiscal year ended December 31, 1999, as filed with the SEC.
"Xxxxxxxx 10-Q" means Xxxxxxxx'x Quarterly Report on Form 10-Q for
the quarter ended September 30, 2000, as filed with the SEC.
"Xxxxxxxx Benefit Plan" means a Benefit Plan maintained or
contributed to by Xxxxxxxx or a Subsidiary of Xxxxxxxx, or to which Xxxxxxxx or
any Subsidiary of Xxxxxxxx is required to contribute.
"Xxxxxxxx Capital Stock" shall have the meaning set forth in Section
4.2(b)(i)(B).
"Xxxxxxxx Common Stock" means common stock, par value $1.25 per
share, of Xxxxxxxx.
"Xxxxxxxx Disclosure Schedule" shall have the meaning set forth in
Section 4.2.
"Xxxxxxxx Preferred Stock" shall have the meaning set forth in
Section 4.2(b)(i)(B).
"Xxxxxxxx Recommendation" shall have the meaning set forth in
Section 6.1(c).
"Xxxxxxxx Rights" shall have the meaning set forth in Section
3.1(b).
"Xxxxxxxx Rights Agreement" shall have the meaning set forth in
Section 3.1(b).
"Xxxxxxxx SEC Documents" shall have the meaning set forth in Section
4.2(e).
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"Xxxxxxxx Stock Option" shall have the meaning set forth in Section
3.2(a).
"Xxxxxxxx Stock Plans" shall have the meaning set forth in Section
4.2(b)(i).
"Xxxxxxxx Stockholder Approval" shall have the meaning set forth in
Section 4.2(c)(i).
"Xxxxxxxx Stockholders Meeting" shall have the meaning set forth in
Section 4.2(c)(i).
"Xxxxxxxx Termination Fee" means $250,000,000.
"Qualifying Amendment" means an amendment or supplement to the Joint
Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference)
to the extent it contains (i) a Change in the Xxxxxxxx Recommendation or a
Change in the Tosco Recommendation (as the case may be), (ii) a statement of the
reasons of the Board of Directors of Xxxxxxxx or Xxxxx (as the case may be) for
making such Change in the Xxxxxxxx Recommendation or Change in the Tosco
Recommendation (as the case may be) and (iii) additional information reasonably
related to the foregoing.
"Regulatory Law" means the HSR Act, 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 (i) mergers, acquisitions or other business combinations,
(ii) foreign investment, or (iii) actions having the purpose or effect of
monopolization or restraint of trade or lessening of competition.
"Required Approvals" shall have the meaning set forth in Section
6.4(a)(i).
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" shall have the meaning ascribed to such
term in Rule 1-02 of Regulation S-X of the SEC.
"Subsidiary" shall have the meaning ascribed to such term in Rule
1-02 of Regulation S-X of the SEC.
"Superior Proposal" means, with respect to Xxxxxxxx or Xxxxx, as the
case may be, a bona fide written proposal made by a Person other than a party to
this Agreement which is (i) for an Acquisition Proposal (except that references
in the definition of "Acquisition Proposal" to "20%" shall be "50%") involving
such party and (ii) is on terms which its Board of Directors in good faith
concludes (following receipt of the advice of 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,
(x) would, if consummated, result in a transaction that is more favorable to its
stockholders (in their capacities as stockholders), from a financial point of
view, than the transactions contemplated by this Agreement and (y) is reasonably
capable of being completed.
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"Surviving Corporation" shall have the meaning set forth in Section
2.1.
"Taxes" means any and all federal, state, local, foreign or other
taxes of any kind (together with any and all interest, penalties, additions to
tax and additional amounts imposed with respect thereto) imposed by any taxing
authority, including taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth, and taxes or other charges in the
nature of excise, withholding, ad valorem or value added.
"Tax Return" means any return, report or similar statement
(including any attached schedules) required to be filed with respect to any Tax,
including any information return, claim for refund, amended return or
declaration of estimated Tax.
"Termination Date" shall have the meaning set forth in Section
8.1(b).
"Tosco" shall have the meaning set forth in the preamble.
"Tosco 1999 10-K" means Tosco's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, as filed with the SEC.
"Tosco 10-Q" means Tosco's Quarterly Report on Form 10-Q for the
quarter ended September 30, 2000, as filed with the SEC.
"Tosco Benefit Plan" means a Benefit Plan maintained or contributed
to by Tosco or a Subsidiary of Tosco, or to which Tosco or any Subsidiary of
Tosco is required to contribute.
"Tosco Capital Stock" shall have the meaning set forth in Section
4.1(b)(i)(B).
"Tosco Certificate" shall have the meaning set forth in Section
3.1(b).
"Tosco Common Stock" means common stock, par value $0.75 per share,
of Tosco.
"Tosco Contract" shall have the meaning set forth in Section
4.1(j)(i).
"Tosco Converted Option" shall have the meaning set forth in Section
3.2(a).
"Tosco Disclosure Schedule" shall have the meaning set forth in
Section 4.1.
"Tosco Employees" shall have the meaning set forth in Section
6.8(a).
"Tosco Indebtedness" shall have the meaning set forth in Section
5.1(g)(ii).
"Tosco Preferred Stock" shall have the meaning set forth in Section
4.1(b)(i).
"Tosco Recommendation" shall have the meaning set forth in Section
6.1(b).
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"Tosco Right" means a preferred share purchase right issuable
pursuant to the Tosco Rights Agreement.
"Tosco Rights Agreement" means the Rights Agreement, dated as of
November 19, 1998, between Tosco and BankBoston, N.A., as rights agent.
"Tosco SEC Documents" shall have the meaning set forth in Section
4.1(e).
"Tosco Stock Option" shall have the meaning set forth in Section
3.2(a).
"Tosco Stock Plans" shall have the meaning set forth in Section
4.1(b)(i).
"Tosco Stockholder Approval" shall have the meaning set forth in
Section 4.1(c)(i).
"Tosco Stockholders Meeting" shall have the meaning set forth in
Section 4.1(c)(i).
"Tosco Toprs" shall have the meaning set forth in Section 4.1(b)(i).
"Tosco Termination Fee" means $250,000,000.
"Voting Debt" means any bonds, debentures, notes or other
indebtedness having the right to vote on any matters on which holders of capital
stock of the same issuer may vote.
ARTICLE II
THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions hereof,
at the Effective Time, Merger Sub shall be merged with and into Tosco, with
Tosco as the surviving corporation in the Merger (the "Surviving Corporation"),
and the separate existence of Merger Sub shall thereupon cease. As a result of
the Merger, Tosco will become a wholly owned subsidiary of Xxxxxxxx.
2.2 Effective Time of the Merger. The Merger shall become effective
as set forth in properly executed articles of merger duly filed with the
Secretary of State of the State of Nevada (the "Nevada Articles of Merger"),
which filing shall be made as soon as practicable after the closing of the
transactions contemplated by this Agreement in accordance with Section 2.4. As
used in this Agreement, the term "Effective Time" shall mean the date and time
when the Merger becomes effective, as set forth in the Nevada Articles of
Merger.
2.3 Effects of the Merger. The Merger shall have the effects set
forth in the applicable provisions of the NGCL. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, except as
otherwise provided herein, all of the property, rights, privileges, powers and
franchises of Merger Sub and Tosco shall vest in the Surviving Corporation, and
all debts, liabilities and duties of Merger Sub and Tosco shall become the
debts, liabilities and duties of the Surviving Corporation.
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2.4 Closing. Upon the terms and subject to the conditions set forth
in Article VII and the termination rights set forth in Article VIII, the closing
of the transactions contemplated by this Agreement (the "Closing") will take
place at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000 at 10:00 A.M. on the second Business Day following the
satisfaction or waiver (subject to applicable law) of the conditions (excluding
conditions that, by their nature, cannot be satisfied until the Closing Date)
set forth in Article VII, unless this Agreement has been theretofore terminated
pursuant to its terms or unless another place, time or date is agreed to in
writing by the parties hereto (the date of the Closing being referred to herein
as the "Closing Date").
2.5 Articles of Incorporation. At the Effective Time, the Articles
of Incorporation of the Surviving Corporation shall be amended in their entirety
to read as the Articles of Incorporation of Merger Sub, as in effect immediately
prior to the Effective Time, until thereafter changed or amended as provided
therein or by applicable law; provided, however, that the Articles of
Incorporation of the Surviving Corporation shall provide that the Surviving
Corporation shall be named "Tosco Corporation".
2.6 By-Laws. The by-laws of Merger Sub as in effect immediately
prior to the Effective Time shall be the by-laws of the Surviving Corporation.
2.7 Directors and Officers. The directors of Merger Sub immediately
prior to the Effective Time shall be the directors of the Surviving Corporation
and the officers of Tosco immediately prior to the Effective Time shall be the
officers of the Surviving Corporation, in each case, until their respective
successors are duly elected and qualified.
ARTICLE III
CONVERSION OF SECURITIES
3.1 Exchange Ratio. At the Effective Time, by virtue of the Merger
and without any action on the part of any holder of any capital stock of Tosco:
(a) All shares of capital stock of Tosco that are held by Tosco as
treasury stock or that are owned by Xxxxxxxx immediately prior to the Effective
Time shall cease to be outstanding and shall be cancelled and retired and shall
cease to exist.
(b) Subject to Sections 3.1(a) and 3.7, each outstanding share of
Tosco Common Stock (together with any associated Tosco Rights) issued and
outstanding immediately prior to the Effective Time shall be converted into the
right to receive 0.8 (the "Exchange Ratio") fully paid and nonassessable shares
of Xxxxxxxx Common Stock (the "Merger Consideration"). All of such shares of
Xxxxxxxx Common Stock shall be duly authorized and validly issued and free of
preemptive rights, with no personal liability attaching to the ownership
thereof. One preferred share purchase right issuable pursuant to the Rights
Agreement, dated as of August 1, 1999, between Xxxxxxxx and ChaseMellon
Shareholder Services, L.L.C., as rights agent (the "Xxxxxxxx Rights Agreement"),
or any other purchase right issued in substitution thereof (the "Xxxxxxxx
Rights"), shall be issued together with and shall attach to each share of
Xxxxxxxx Common Stock issued pursuant to this Section 3.1(b), unless the
Xxxxxxxx Rights have been redeemed prior to the
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Effective Time. All shares of Tosco Common Stock shall cease to be outstanding
and shall be canceled and retired and shall cease to exist, and each holder of a
certificate that immediately prior to the Effective Time represented any such
shares of Tosco Common Stock (a "Tosco Certificate") shall thereafter cease to
have any rights with respect to such shares of Tosco Common Stock, except the
right to receive the Merger Consideration to be issued in consideration therefor
and any dividends or other distributions to which holders of Tosco Common Stock
become entitled all in accordance with this Article III upon the surrender of
such Tosco Certificate.
(c) If, between the date of this Agreement and the Effective Time,
there is a reclassification, recapitalization, stock split, split-up, stock
dividend, combination or exchange of shares with respect to, or rights issued in
respect of, Tosco Common Stock or Xxxxxxxx Common Stock, the Exchange Ratio
shall be adjusted accordingly to provide to the holders of Tosco Common Stock
the same economic effect as contemplated by this Agreement prior to such event.
(d) Each issued and outstanding share of capital stock of Merger Sub
shall be converted into and become one fully paid and nonassessable share of
common stock, par value $.01 per share, of the Surviving Corporation.
3.2 Stock Options and Other Equity-Based Awards. (a) Each option to
purchase Tosco Common Stock (a "Tosco Stock Option") granted under Tosco Stock
Plans which is outstanding immediately prior to the Effective Time shall cease
to represent a right to acquire shares of Tosco Common Stock and shall be
converted (as so converted, a "Tosco Converted Option"), at the Effective Time,
into an option to purchase Xxxxxxxx Common Stock (a "Xxxxxxxx Stock Option"), on
the same terms and conditions as were applicable under the Tosco Stock Option
(but taking into account any changes thereto, including the acceleration
thereof, provided for in the Tosco Stock Plans, in any award agreement or in
such option by reason of this Agreement or the transactions contemplated
hereby). The number of shares of Xxxxxxxx Common Stock subject to each such
Xxxxxxxx Stock Option shall be the number of shares of Tosco Common Stock
subject to the Tosco Stock Option multiplied by the Exchange Ratio, rounded, if
necessary, to the nearest whole share of Xxxxxxxx Common Stock, and such
Xxxxxxxx Stock Option shall have an exercise price per share (rounded to the
nearest one-hundredth of a cent) equal to the per share exercise price specified
in such Tosco Stock Option divided by the Exchange Ratio; provided, however,
that in the case of any Tosco Stock Option to which Section 421 of the Code as
of the Effective Time (after taking into account the effect of any accelerated
vesting thereof) applies by reason of its qualification under Section 422 of the
Code, the exercise 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. Notwithstanding
the foregoing, (i) with respect to each holder of a Tosco Stock Option whose
employment with Tosco is terminated for any reason following the date hereof and
prior to the Effective Time, Tosco may, in its sole discretion with the consent
of such holder, elect to pay such holder in cancellation of such Tosco Stock
Option, an amount of cash equal to (A) the excess (if any) of (x) the closing
price of Tosco Common Stock on the NYSE (as reported on the NYSE Composite Tape)
on the date of such termination (or if there is no such trading on the date of
termination, on the most recent trading day prior to the date of termination)
over (y) the per-share exercise price of such Tosco Stock Option times (B) the
number of shares
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of Tosco Common Stock subject to such Tosco Stock Option immediately following
such termination, subject to all required Tax withholding, and (ii) with respect
to each holder of a Tosco Stock Option that is converted into a Xxxxxxxx Stock
Option in accordance with this Section 3.2 and whose employment with Tosco is
terminated for any reason following the Effective Time and prior to the date six
months after the Closing Date, Xxxxxxxx may, in its sole discretion with the
consent of such holder, elect to pay such holder in cancellation of such
Xxxxxxxx Stock Option, an amount of cash equal to (A) the excess (if any) of (x)
the closing price of Xxxxxxxx Common Stock on the NYSE (as reported on the NYSE
Composite Tape) on the date of such termination (or if there is no such trading
on the date of termination, on the most recent trading day prior to the date of
termination) over (y) the per-share exercise price of such Xxxxxxxx Stock Option
times (B) the number of shares of Xxxxxxxx Common Stock subject to such Xxxxxxxx
Stock Option immediately following such termination, subject to all required Tax
withholding.
(b) As soon as practicable after the Effective Time, Xxxxxxxx shall
deliver to the holders of Tosco Stock Options appropriate notices setting forth
such holders' rights pursuant to the respective Tosco Stock Plans and agreements
evidencing the grants of such Tosco Stock Options and stating that such Tosco
Stock Options and agreements have been assumed by Xxxxxxxx and shall continue in
effect on the same terms and conditions (subject to the adjustments required by
this Section 3.2 after giving effect to the Merger and the terms of the Tosco
Stock Plans).
(c) Prior to the Effective Time, Tosco shall take all necessary
action for the adjustment of Tosco Converted Options under this Section 3.2.
Xxxxxxxx shall reserve for issuance a number of shares of Xxxxxxxx Common Stock
at least equal to the number of shares of Xxxxxxxx Common Stock that will be
subject to Tosco Converted Options. As soon as practicable following the
Effective Time, Xxxxxxxx shall file a registration statement on Form S-8 (or any
successor, or if Form S-8 is not available, other appropriate, forms) with
respect to the shares of Xxxxxxxx Common Stock subject to Tosco Converted
Options and shall 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.
3.3 Exchange Fund. Prior to the Effective Time, Xxxxxxxx shall
appoint Mellon Investor Services LLC, or a commercial bank or trust company, or
a subsidiary thereof, reasonably acceptable to Tosco, to act as exchange agent
hereunder for the purpose of exchanging Tosco Certificates for the Merger
Consideration (the "Exchange Agent"). At or prior to the Effective Time,
Xxxxxxxx shall deposit with the Exchange Agent, in trust for the benefit of
holders of shares of Tosco Common Stock, certificates representing the shares of
Xxxxxxxx Common Stock issuable pursuant to Section 3.1 in exchange for
outstanding shares of Tosco Common Stock. Following the Effective Time, Xxxxxxxx
agrees to make available to the Exchange Agent from time to time as needed, cash
sufficient to pay any dividends and other distributions pursuant to Section 3.5.
Any cash and certificates representing Xxxxxxxx Common Stock deposited with the
Exchange Agent (including the proceeds from sales of Excess Shares in accordance
with Section 3.7) shall hereinafter be referred to as the "Exchange Fund."
3.4 Exchange Procedures. Promptly after the Effective Time, Xxxxxxxx
shall cause the Exchange Agent to mail to each holder of a Tosco Certificate (a)
a letter of transmittal that shall specify that delivery shall be effected, and
risk of loss and title to the Tosco Certificates
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shall pass, only upon proper delivery of the Tosco Certificates to the Exchange
Agent, and which letter shall be in customary form and have such other
provisions as Xxxxxxxx or Xxxxx may reasonably specify (such letter to be
reasonably acceptable to Tosco and Xxxxxxxx prior to the Effective Time) and (b)
instructions for effecting the surrender of such Tosco Certificates in exchange
for the Merger Consideration, together with any dividends and other
distributions with respect thereto and any cash in lieu of fractional shares.
Upon surrender of a Tosco 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 Tosco Certificate shall be entitled to
receive in exchange therefor (i) shares of Xxxxxxxx Common Stock (which shall be
in uncertificated book-entry form, unless a physical certificate is requested by
such holder or is otherwise required by applicable law or regulation)
representing, in the aggregate, the whole number of shares that such holder has
the right to receive pursuant to Section 3.1 (after taking into account all
shares of Tosco Common Stock then held by such holder) and (ii) a check in the
amount equal to the cash that such holder has the right to receive pursuant to
the provisions of this Article III, including cash in lieu of any fractional
shares of Xxxxxxxx Common Stock pursuant to Section 3.7 and dividends and other
distributions pursuant to Section 3.5. No interest will be paid or will accrue
on any cash payable pursuant to Section 3.5 or Section 3.7. In the event of a
transfer of ownership of Tosco Common Stock that is not registered in the
transfer records of Tosco, one or more shares of Xxxxxxxx Common Stock
evidencing, in the aggregate, the proper number of shares of Xxxxxxxx Common
Stock, a check in the proper amount of cash in lieu of any fractional shares of
Xxxxxxxx Common Stock pursuant to Section 3.7 and any dividends or other
distributions to which such holder is entitled pursuant to Section 3.5, may be
issued with respect to such Tosco Common Stock to such a transferee if the Tosco
Certificate representing such shares of Tosco 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.
3.5 Distributions with Respect to Unexchanged Shares. No dividends
or other distributions with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Tosco Certificate with respect to the shares
of Xxxxxxxx Common Stock that such holder would be entitled to receive upon
surrender of such Tosco Certificate, and no cash payment in lieu of fractional
shares of Xxxxxxxx Common Stock shall be paid to any such holder pursuant to
Section 3.7 until such holder shall surrender such Tosco Certificate in
accordance with Section 3.4. Subject to the effect of applicable laws, following
surrender of any such Tosco Certificate, there shall be paid to the record
holder thereof without interest, (a) promptly after the time of such surrender,
the amount of any cash payable in lieu of fractional shares of Xxxxxxxx Common
Stock to which such holder is entitled pursuant to Section 3.7 and the amount of
dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to such whole shares of Xxxxxxxx Common Stock and
(b) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time and a payment date
subsequent to such surrender payable with respect to such shares of Xxxxxxxx
Common Stock.
3.6 No Further Ownership Rights in Tosco Common Stock. All shares of
Xxxxxxxx Common Stock issued and cash paid upon conversion of shares of Tosco
Common Stock in accordance with the terms of this Article III (including any
cash paid pursuant to Section 3.5
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or 3.7) shall be deemed to have been issued or paid in full satisfaction of all
rights pertaining to the shares of Tosco Common Stock.
3.7 No Fractional Shares of Xxxxxxxx Common Stock. No certificates
or scrip or shares of Xxxxxxxx Common Stock representing fractional shares of
Xxxxxxxx Common Stock or book-entry credit of the same shall be issued upon the
surrender for exchange of Tosco Certificates, and such fractional share
interests will not entitle the owner thereof to vote or to have any rights of a
stockholder of Xxxxxxxx or a holder of shares of Xxxxxxxx Common Stock. In lieu
of any such fractional share, each holder of shares of Tosco Common Stock who
would otherwise have been entitled to a fraction of a share of Xxxxxxxx Common
Stock upon surrender of Tosco Certificates (determined after taking into account
all Tosco Certificates delivered by such holder) shall be paid upon such
surrender cash (without interest) in an amount equal to such holder's
proportionate interest in the net proceeds from the sale or sales in the open
market by the Exchange Agent, on behalf of all such holders, of the aggregate
fractional Xxxxxxxx Common Stock issued pursuant to this Section 3.7. As soon as
practicable following the Effective Date, the Exchange Agent shall determine the
excess of (i) the number of full shares of Xxxxxxxx Common Stock delivered to
the Exchange Agent by Xxxxxxxx over (ii) the aggregate number of full shares of
Xxxxxxxx Common Stock to be distributed to holders of Tosco Common Stock (such
excess, the "Excess Shares"), and the Exchange Agent, as agent for the former
holders of Tosco Common Stock, shall sell the Excess Shares at the prevailing
prices on the NYSE. The sale of the Excess Shares by the Exchange Agent shall be
executed on the NYSE through one or more member firms of the NYSE and shall be
executed in round lots to the extent practicable. All commissions, transfer
taxes and other out-of-pocket transaction costs, including the expenses and
compensation of the Exchange Agent, incurred in connection with such sale of
Excess Shares shall reduce, but not below zero, the amount of cash paid to
holders in respect of fractional shares. Until the net proceeds of such sale
have been distributed to the former holders of Tosco Common Stock, the Exchange
Agent will hold such proceeds in trust for such former holders. As soon as
practicable after the determination of the amount of cash to be paid to such
former holders of Tosco Common Stock in lieu of any fractional interests, the
Exchange Agent shall make available in accordance with this Agreement such
amounts to such former holders of Tosco Common Stock.
3.8 Termination of Exchange Fund. Any portion of the Exchange Fund
that remains undistributed to the holders of Tosco Certificates one year after
the Effective Time shall, at Xxxxxxxx'x request, be delivered to Xxxxxxxx or
otherwise on the instruction of Xxxxxxxx, and any holders of Tosco Certificates
who have not theretofore complied with this Article III shall after such
delivery look only to Xxxxxxxx for the Merger Consideration with respect to the
shares of Tosco Common Stock formerly represented thereby to which such holders
are entitled pursuant to Sections 3.1 and 3.4, any cash in lieu of fractional
shares of Xxxxxxxx Common Stock to which such holders are entitled pursuant to
Section 3.7 and any dividends or distributions with respect to shares of
Xxxxxxxx Common Stock to which such holders are entitled pursuant to Section
3.5. Any such portion of the Exchange Fund remaining unclaimed by holders of
shares of Tosco Common Stock immediately prior to such time as such amounts
would otherwise escheat to or become property of any Governmental Entity shall,
to the extent permitted by law, become the property of Xxxxxxxx free and clear
of any claims or interest of any Person previously entitled thereto.
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3.9 No Liability. None of Xxxxxxxx, Merger Sub, Tosco 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.
3.10 Investment of the Exchange Fund. The Exchange Agent shall
invest any cash included in the Exchange Fund as directed by Xxxxxxxx on a daily
basis; provided that no such investment or loss thereon shall affect the amounts
payable or the timing of the amounts payable to Tosco stockholders pursuant to
the other provisions of this Article III. Any interest and other income
resulting from such investments shall promptly be paid to Xxxxxxxx.
3.11 Lost Certificates. If any Tosco Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
Person claiming such Tosco Certificate to be lost, stolen or destroyed and, if
required by Xxxxxxxx, the posting by such Person of a bond in such reasonable
amount as Xxxxxxxx may direct as indemnity against any claim that may be made
against it with respect to such Tosco Certificate, the Exchange Agent will
deliver in exchange for such lost, stolen or destroyed Tosco Certificate the
Merger Consideration with respect to the shares of Tosco Common Stock formerly
represented thereby, any cash in lieu of fractional shares of Xxxxxxxx Common
Stock, and unpaid dividends and distributions on shares of Xxxxxxxx Common Stock
deliverable in respect thereof, pursuant to this Agreement.
3.12 Withholding Rights. Xxxxxxxx shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Agreement
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 or paid over to or deposited with the relevant
Governmental Entity by Xxxxxxxx, such amounts shall be treated for all purposes
of this Agreement as having been paid to the Person in respect of which such
deduction and withholding was made by Xxxxxxxx.
3.13 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of the Surviving Corporation,
Merger Sub or Tosco, any deeds, bills of sale, assignments or assurances and to
take and do, in the name and on behalf of the Surviving Corporation, Merger Sub
or Tosco, any other actions and things necessary to vest, perfect or confirm of
record or otherwise in Xxxxxxxx or 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.
3.14 Stock Transfer Books. The stock transfer books of Tosco shall
be closed immediately upon the Effective Time, and there shall be no further
registration of transfers of shares of Tosco Common Stock thereafter on the
records of Tosco. On or after the Effective Time, any Tosco Certificates
presented to the Exchange Agent, Xxxxxxxx or the Surviving Corporation for any
reason shall be converted into the right to receive the Tosco Merger
Consideration with respect to the shares of Tosco Common Stock formerly
represented thereby (including any cash in lieu of fractional shares of Xxxxxxxx
Common Stock to which the holders
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thereof are entitled pursuant to Section 3.7 and any dividends or other
distributions to which the holders thereof are entitled pursuant to Section
3.5).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Tosco. Except as disclosed in
the Tosco disclosure schedule delivered to Xxxxxxxx concurrently herewith (the
"Tosco Disclosure Schedule") or in the Tosco SEC Documents, Tosco hereby
represents and warrants to Xxxxxxxx as follows:
(a) Corporate Organization. (i) Tosco is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. Tosco has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business in each jurisdiction in which
the nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
would not, either individually or in the aggregate, have a Material Adverse
Effect on Tosco. True and complete copies of the Amended and Restated Articles
of Incorporation and By-Laws of Tosco, as in effect as of the date of this
Agreement, have previously been made available by Tosco to Xxxxxxxx.
(ii) Each Subsidiary of Tosco (A) is duly organized and validly
existing under the laws of its jurisdiction of organization, (B) is duly
qualified to do business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so qualified and in which the
failure to be so qualified would have a Material Adverse Effect on Tosco, and
(C) has all requisite corporate power and authority to own or lease its
properties and assets and to carry on its business as now conducted.
(b) Capitalization. (i) The authorized capital stock of Tosco
consists of (A) 250,000,000 shares of Tosco Common Stock (each of which includes
one Tosco Right), of which, as of January 31, 2001, 144,896,342 shares were
issued and outstanding and 32,927,172 shares were held in treasury and (B)
12,000,000 shares of preferred stock, par value $.01 per share, of Tosco ("Tosco
Preferred Stock," together with the Tosco Common Stock, the "Tosco Capital
Stock"), of which no shares are issued and outstanding. From January 31, 2001 to
the date of this Agreement, no shares of Tosco Capital Stock have been issued
except pursuant to employee and director stock plans of Tosco in effect as of
the date hereof (the "Tosco Stock Plans"). As of the date of this Agreement,
except pursuant to the terms of options, stock and restricted units issued
pursuant to Tosco Stock Plans, pursuant to the 5 3/4% convertible junior
subordinated debentures of Tosco and the 5 3/4% convertible preferred securities
of Tosco Financing Trust (together, the "Tosco Toprs") and pursuant to the Tosco
Rights, Tosco does not have and is not bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
the purchase or issuance of any shares of Tosco Capital Stock or any other
equity securities of Tosco or any securities of Tosco representing the right to
purchase or otherwise receive any shares of Tosco Capital Stock. As of January
31, 2001, no
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shares of Tosco Capital Stock were reserved for issuance, except for 9,010,474
shares of Tosco Common Stock reserved for issuance upon the exercise of stock
options pursuant to the Tosco Stock Plans and in respect of the employee and
director savings, compensation and deferred compensation plans described in the
Tosco 1999 10-K, 9,113,940 shares of Tosco Common Stock reserved for issuance
upon conversion of the Tosco Toprs and 2,500,000 shares of Series A Junior
Participating Preferred Stock reserved for issuance in connection with the Tosco
Rights Agreement. Tosco has no Voting Debt issued or outstanding.
(ii) Except for immaterial amounts of directors' qualifying
shares in foreign Subsidiaries of Tosco, Tosco owns, directly or indirectly, all
of the issued and outstanding shares of capital stock or other equity ownership
interests of each Subsidiary of Tosco, free and clear of any liens, pledges,
charges, encumbrances and security interests whatsoever ("Liens"), and all of
such shares or equity ownership interests are duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. No Subsidiary of Tosco
has or is bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the purchase or issuance
of any shares of capital stock or any other equity security of such Subsidiary
or any securities representing the right to purchase or otherwise receive any
shares of capital stock or any other equity security of such Subsidiary. Section
4.2(b)(ii) of the Tosco Disclosure Schedule sets forth a list of each material
investment of Tosco in any corporation, joint venture, partnership, limited
liability company or other entity other than its Subsidiaries, which would be
considered a Significant Subsidiary if such investment constituted control of
such entity (each a "Non-Subsidiary Affiliate").
(c) Authority; No Violation. (i) Tosco has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly approved by the Board of Directors of Tosco. The Board of Directors of
Tosco has directed that this Agreement be submitted to Tosco stockholders for
approval at a meeting of Tosco stockholders for the purpose of approving the
Merger and this Agreement (the "Tosco Stockholders Meeting"), and, except for
the approval of the Merger and of this Agreement by the affirmative vote of the
holders of a majority of the outstanding shares of Tosco Common Stock (the
"Tosco Stockholder Approval"), no other corporate proceedings on the part of
Tosco are necessary to approve this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Tosco and (assuming due authorization, execution and delivery by
Xxxxxxxx and Merger Sub) constitutes a valid and binding obligation of Tosco,
enforceable against Tosco in accordance with its terms.
(ii) Neither the execution and delivery of this Agreement by
Tosco, nor the consummation by Tosco of the transactions contemplated hereby,
nor compliance by Tosco with any of the terms or provisions hereof, will (A)
violate any provision of the Amended and Restated Articles of Incorporation or
By-Laws of Tosco, or (B) assuming that the consents and approvals referred to in
Section 4.1(d) are duly obtained, (x) violate any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or injunction applicable to
Tosco, any of its Subsidiaries or Non-Subsidiary Affiliates or any of their
respective properties or assets or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under,
-15-
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by,
accelerate any right or benefit provided by, or result in the creation of any
Lien upon any of the respective properties or assets of Tosco, any of its
Subsidiaries or its Non-Subsidiary Affiliates under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which Tosco, any
of its Subsidiaries or Non-Subsidiary Affiliates is a party, or by which they or
any of their respective properties or assets may be bound or affected, except
(in the case of clause (y) above) for such violations, conflicts, breaches or
defaults which either individually or in the aggregate will not have a Material
Adverse Effect on Tosco or the Surviving Corporation.
(d) Consents and Approvals. Except for (i) the filing of a
notification and report form under the HSR Act and the termination or expiration
of the waiting period under the HSR Act, (ii) the filing of any other required
applications or notices with any state or foreign agencies and approval of such
applications and notices (the "Other Approvals"), (iii) the filing with the SEC
of a joint proxy statement/prospectus relating to the matters to be submitted to
Xxxxxxxx'x stockholders at the Xxxxxxxx Stockholders Meeting and the matters to
be submitted to Tosco's stockholders at the Tosco Stockholders Meeting (such
joint proxy statement/prospectus, and any amendments or supplements thereto, the
"Joint Proxy Statement/Prospectus") and a registration statement on Form S-4
with respect to the issuance of Xxxxxxxx Common Stock in the Merger (such Form
S-4, and any amendments or supplements thereto, the "Form S-4"), (iv) the filing
of the Nevada Articles of Merger, (v) any consents, authorizations, approvals,
filings or exemptions in connection with compliance with the rules of the NYSE,
(vi) such filings and approvals as are required to be made or obtained under the
securities or "Blue Sky" laws of various states in connection with the issuance
of Xxxxxxxx Common Stock pursuant to this Agreement (the consents, approvals,
filings and registration required under or in relation to the foregoing clauses
(ii) though (vi) being referred to as "Necessary Consents") and (vii) such other
consents, approvals, filings and registrations the failure of which to obtain or
make would not reasonably be expected to have a Material Adverse Effect on
Tosco, no consents or approvals of or filings or registrations 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 (each, a "Governmental Entity") are necessary in connection with (A)
the execution and delivery by Tosco of this Agreement and (B) the consummation
by Tosco of the transactions contemplated by this Agreement.
(e) Financial Reports and SEC Documents. The Tosco 1999 10-K and all
other reports, registration statements, definitive proxy statements or
information statements filed or to be filed by Tosco or any of its Subsidiaries
subsequent to December 31, 1997 under the Securities Act or under Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in the form filed, or to be filed
(collectively, the "Tosco SEC Documents"), with the SEC, (i) complied or will
comply in all material respects as to form with the applicable requirements
under the Securities Act or the Exchange Act, as the case may be, and (ii) as of
its filing date, did not or will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances
-16-
under which they were made, not misleading; and each of the balance sheets
contained in or incorporated by reference into any such Tosco SEC Document
(including the related notes and schedules thereto) fairly presents or will
fairly present the financial position of the entity or entities to which it
relates as of its date, and each of the statements of income and changes in
stockholders' equity and cash flows or equivalent statements in such Tosco SEC
Documents (including any related notes and schedules thereto) fairly presents or
will fairly present the results of operations, changes in stockholders' equity
and changes in cash flows, as the case may be, of the entity or entities to
which it relates for the periods to which it relates, in each case in accordance
with GAAP consistently applied during the periods involved, except, in each
case, as may be noted therein, subject to normal year-end audit adjustments in
the case of unaudited statements.
(f) Absence of Undisclosed Liabilities. Except as disclosed in the
unaudited financial statements (or notes thereto) included in the Tosco 10-Q,
neither Tosco nor any of its Subsidiaries had at September 30, 2000, or has
incurred since that date through the date hereof, any liabilities or obligations
(whether absolute, accrued, contingent or otherwise) of any nature, except (a)
liabilities, obligations or contingencies which (i) are accrued or reserved
against in the financial statements in the Tosco 10-Q or reflected in the notes
thereto or (ii) were incurred in the ordinary course of business and consistent
with past practices, (b) liabilities, obligations or contingencies which (i)
would not reasonably be expected to have a Material Adverse Effect on Tosco, or
(ii) have been discharged or paid in full prior to the date hereof, and (c)
liabilities, obligations and contingencies which are of a nature not required to
be reflected in the consolidated financial statements of Tosco and its
Subsidiaries prepared in accordance with GAAP consistently applied.
(g) Absence of Certain Changes or Events. (i) Since September 30,
2000, no event or events have occurred that would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on
Tosco.
(ii) Since September 30, 2000, Tosco and its Subsidiaries have
carried on their respective businesses in all material respects in the ordinary
course.
(iii) Since September 30, 2000, neither Tosco nor any of its
Subsidiaries has (A) except for such actions as were in the ordinary course of
business or except as required by applicable law, (I) increased the wages,
salaries, compensation, pension, or other fringe benefits or perquisites payable
to any executive officer or director from the amount thereof in effect as of
December 31, 1999, or (II) granted any severance or termination pay, entered
into any contract to make or grant any severance or termination pay, or paid any
bonuses, to any executive officer or director or (B) suffered any strike, work
stoppage, slowdown, or other labor disturbance which would be reasonably be
expected to have, (in the case of clause (A) or (B) above) either individually
or in the aggregate, a Material Adverse Effect on Tosco.
(iv) Since September 30, 2000, Tosco has not declared any
dividends on Tosco Common Stock other than its regular quarterly dividends.
(h) Legal Proceedings. There is no suit, action or proceeding or
investigation pending or, to the knowledge of Tosco, threatened, against or
affecting Tosco or any of its
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Subsidiaries or, to the knowledge of Tosco, any basis for any such suit, action,
proceeding or investigation that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Tosco, nor is there
any judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against Tosco or its Subsidiaries having, or which would
reasonably be expected to have, any such effect.
(i) Compliance with Applicable Law. Tosco and each of its
Subsidiaries hold all licenses, franchises, permits and authorizations necessary
for the lawful conduct of their respective businesses under and pursuant to
each, and have complied in all respects with and are not in default in any
material respect under any, applicable law, statute, order, rule or regulation
of any Governmental Entity relating to Tosco or any of its Subsidiaries, except
where the failure to hold such license, franchise, permit or authorization or
such noncompliance or default would not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on Tosco.
(j) Contracts. (i) Neither Tosco nor any of its Subsidiaries is a
party to or bound by any contract, arrangement, commitment or understanding
(whether written or oral) (A) with respect to the employment of any directors,
officers or employees other than in the ordinary course of business consistent
with past practice, (B) which, upon the consummation or stockholder approval of
the transactions contemplated by this Agreement, will (either alone or upon the
occurrence of any additional acts or events) result in any payment (whether of
severance pay or otherwise) becoming due from Phillips, Tosco, the Surviving
Corporation or any of their respective Subsidiaries to any officer or employee
thereof, (C) which is a "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this
Agreement that has not been filed or incorporated by reference in the Tosco SEC
Documents, or (D) which materially restricts the conduct of any line of business
by Tosco or upon consummation of the Merger will materially restrict the ability
of Xxxxxxxx or the Surviving Corporation to engage in any line of business. Each
contract, arrangement, commitment or understanding of the type described in this
Section 4.1(j), whether or not set forth in the Tosco Disclosure Schedule or in
the Tosco SEC Documents, is referred to herein as a "Tosco Contract" (for
purposes of clarification, each "material contract" (as such term is defined in
Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of
this Agreement, whether or not filed with the SEC, is a Tosco Contract).
(ii) (A) Each Tosco Contract is valid and binding on Tosco and
any of its Subsidiaries that is a party thereto, as applicable, and in full
force and effect, (B) Tosco and each of its Subsidiaries has in all material
respects performed all obligations required to be performed by it to date under
each Tosco Contract, except where such noncompliance, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Tosco, and (C) neither Tosco nor any of its Subsidiaries knows of, or
has received notice of, the existence of any event or condition which
constitutes, or, after notice or lapse of time or both, will constitute, a
material default on the part of Tosco or any of its Subsidiaries under any such
Tosco Contract, except where such default, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
Tosco.
(k) Environmental Liability. There are no legal, administrative,
arbitral or other proceedings, claims, actions, causes of action, private
environmental investigations or
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remediation activities or governmental investigations of any nature seeking to
impose, or that could reasonably result in the imposition of, on Tosco, any
liability or obligation arising under common law or under any local, state or
federal environmental statute, regulation or ordinance including CERCLA, pending
or, to the knowledge of Tosco, threatened against Tosco, which liability or
obligation, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on Tosco. To the knowledge of Tosco,
there is no reasonable basis for any such proceeding, claim, action or
governmental investigation that would impose any liability or obligation that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Tosco. Tosco is not subject to any agreement, order,
judgment, decree, letter or memorandum by or with any court, governmental
authority, regulatory agency or third party imposing any liability or obligation
with respect to the foregoing that, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect on Tosco.
(l) Employee Benefit Plans; Labor Matters. (i) There does not now
exist, and to the knowledge of Tosco, there are no existing circumstances that
could reasonably be expected to result in, any Controlled Group Liability to
Tosco or any of its Subsidiaries that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on Tosco. No Tosco
Benefit Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3)
of ERISA.
(ii) Except as would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect on Tosco, (A) each of the
Tosco Benefit Plans has been operated and administered in all material respects
in accordance with applicable law and administrative rules and regulations of
any Governmental Entity, including, but not limited to, ERISA and the Code, and
(B) there are no pending or threatened claims (other than claims for benefits in
the ordinary course), lawsuits or arbitrations which have been asserted or
instituted, and, to the knowledge of Tosco, no set of circumstances exists which
may reasonably give rise to a claim or lawsuit, against the Tosco Benefit Plans,
any fiduciaries thereof with respect to their duties to the Tosco Benefit Plans
or the assets of any of the trusts under any of the Tosco Benefit Plans which
could reasonably be expected to result in any material liability of Tosco or any
of its Subsidiaries to the Pension Benefit Guaranty Corporation, the U.S.
Department of the Treasury, the U.S. Department of Labor, any Tosco Benefit
Plan, any participant in a Tosco Benefit Plan, or any other party.
(iii) Neither Tosco nor any Subsidiary of Tosco is a party to
any collective bargaining or other labor union contract applicable to persons
employed by Tosco or any Subsidiary of Tosco, and no collective bargaining
agreement or other labor union contract is being negotiated by Tosco or any
Subsidiary of Tosco. Except as would not reasonably be expected to have a
Material Adverse Effect on Tosco, (x) there is no labor dispute, strike,
slowdown or work stoppage against Tosco or any Subsidiary of Tosco pending or,
to the knowledge of Tosco, threatened against Tosco or any Subsidiary of Tosco
and (y) no unfair labor practice or labor charge or complaint has occurred with
respect to Tosco or any Subsidiary of Tosco.
(iv) Section 4.1(l)(iv) of the Tosco Disclosure Schedule sets
forth (x) an accurate and complete list of each Benefit Plan under which the
execution and delivery of this
-19-
Agreement or the consummation of the transactions contemplated hereby could
(either alone or in conjunction with any other event), result in, cause the
accelerated vesting, funding or delivery of, or increase the amount or value of,
any payment or benefit to any employee, officer or director of Tosco or any of
its Subsidiaries, or could limit the right of Tosco or any of its subsidiaries
to amend, merge, terminate or receive a reversion of assets from any Benefit
Plan or related trust or any material employment agreement or related trust, (y)
a reasonable good faith estimate of the maximum amount of the severance benefits
that could become payable to officers of Tosco if their employment were
terminated at the Effective Time, and (z) a reasonable good faith estimate of
the maximum amount of the "excess parachute payments" within the meaning of
Section 280G of the Code that could become payable by Tosco and its Subsidiaries
in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(m) Intellectual Property. Except as would not reasonably be
expected to have a Material Adverse Effect on Tosco, (i) Tosco and its
Subsidiaries own, or are licensed to use, all Intellectual Property used in and
necessary for the conduct of their business as it is currently conducted, (ii)
to the knowledge of Tosco, the use of Intellectual Property by Tosco and its
Subsidiaries does not infringe on or otherwise violate the rights of any third
party, and, to the extent such Intellectual Property is licensed, its use is in
accordance in all material respects with the applicable license pursuant to
which Tosco acquired the right to use such Intellectual Property, (iii) to the
knowledge of Tosco, no third party is challenging, infringing on or otherwise
violating any right of Tosco in the Intellectual Property, (iv) neither Tosco
nor any of its Subsidiaries has received any written notice of any pending
claim, order or proceeding with respect to any Intellectual Property used in and
necessary for the conduct of Tosco's and its Subsidiaries' business as it is
currently conducted, and (v) to the knowledge of Tosco, no Intellectual Property
is being used or enforced by Tosco or its Subsidiaries in a manner that would
reasonably be expected to result in the abandonment, cancellation or
unenforceability of any Intellectual Property used in and necessary for the
conduct of Tosco's and its Subsidiaries' business as it is currently conducted.
(n) State Takeover Laws; Rights Plan. (i) The Board of Directors of
Tosco has approved this Agreement and the transactions contemplated by this
Agreement as required under any applicable state takeover laws so that any such
state takeover laws will not apply to this Agreement or any of the transactions
contemplated hereby.
(ii) Tosco has taken all action, if any, necessary or
appropriate so that the entering into of this Agreement, and the consummation of
the transactions contemplated hereby, do not and will not result in the ability
of any person to exercise any Tosco Rights under the Tosco Rights Agreement or
enable or require the Tosco Rights to separate from the shares of Tosco Common
Stock to which they are attached or to be triggered or become exercisable. No
"Distribution Date" or "Stock Acquisition Date" (as such terms are defined in
the Tosco Rights Agreement) has occurred.
(o) Opinion of Financial Advisor. Tosco has received the opinion of
Xxxxxxx Xxxxx & Co., dated the date hereof, to the effect that the Merger
Consideration to be received by holders of Tosco Common Stock in the Merger is
fair to such stockholders from a financial point of view.
-20-
(p) Board Approval. The Board of Directors of Tosco, at a meeting
duly called and held, has by unanimous vote of those directors present (i)
determined that this Agreement and the transactions contemplated hereby are
advisable, fair to and in the best interests of the stockholders of Tosco, (ii)
adopted this Agreement and (iii) recommended that the plan of merger contained
in this Agreement and the transactions contemplated hereby be approved by the
holders of Tosco Common Stock.
(q) Broker's Fees. Neither Tosco nor any of its Subsidiaries nor any
of their respective officers or directors has employed any broker or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement, excluding fees
to be paid to Xxxxxxx Xxxxx & Co.
(r) Taxes. (i) Each of Tosco and its Subsidiaries has duly and
timely filed all Tax Returns required to be filed by it, and all such Tax
Returns are true, complete and accurate in all respects, except to the extent
that any failure to have filed or any inaccuracies in such Tax Returns would not
reasonably be expected to have a Material Adverse Effect on Tosco. Tosco and
each of its Subsidiaries has paid all Taxes required to be paid by it, and has
paid all Taxes that it was required to withhold from amounts owing to any
employee, creditor or third party, except to the extent that any failure to pay
such Taxes would not reasonably be expected to have a Material Adverse Effect on
Tosco. There are no pending or, to the knowledge of Tosco, threatened audits,
examinations, investigations, deficiencies, claims or other proceedings in
respect of Taxes relating to Tosco or any Subsidiary of Tosco, except for those
which would not reasonably be expected to have a Material Adverse Effect on
Tosco. There are no liens for Taxes upon the assets of Tosco or any Subsidiary
of Tosco, other than liens for current Taxes not yet due, liens for Taxes that
are being contested in good faith by appropriate proceedings, and liens for
Taxes which would not reasonably be expected to have a Material Adverse Effect
on Tosco. Neither Tosco nor any of its Subsidiaries has requested any extension
of time within which to file any Tax Returns in respect of any taxable year
which have not since been filed, nor made any request for waivers of the time to
assess any Taxes that are pending or outstanding, except where such request or
waiver would not reasonably be expected to have a Material Adverse Effect on
Tosco. The consolidated federal income Tax Returns of Tosco have been examined,
or the statute of limitations has closed, with respect to all taxable years
through and including 1992. Neither Tosco nor any of its Subsidiaries has any
liability for Taxes of any Person (other than Tosco and its Subsidiaries) under
Treasury Regulation Section 1.1502-6 (or any comparable provision of state,
local or foreign law), except as would not reasonably be expected to have a
Material Adverse Effect on Tosco. Neither Tosco nor any Subsidiary of Tosco is a
party to any agreement (with any Person other than Tosco and/or any of its
Subsidiaries) relating to the allocation or sharing of Taxes, except as would
not reasonably be expected to have a Material Adverse Effect on Tosco.
(ii) Tosco has not constituted either a "distributing
corporation" or a "controlled corporation" within the meaning of Section
355(a)(1)(A) of the Code in a distribution of stock intended to qualify for
tax-free treatment under Section 355 of the Code (i) in the two years prior to
the date of this Agreement (or will constitute such a corporation in the two
years prior to the Closing Date) or (ii) in a distribution which otherwise
constitutes part of a "plan" or "series of related transactions" within the
meaning of Section 355(e) of the Code in conjunction with the Merger.
-21-
(s) Reorganization under the Code. As of the date of this Agreement,
neither Tosco nor any of its Subsidiaries has taken any action or knows of any
fact that is reasonably likely to prevent the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code.
(t) Form S-4; Joint Proxy Statement/Prospectus. None of the
information to be supplied by Tosco or its Subsidiaries in the Form S-4 or the
Joint Proxy Statement/Prospectus will, at the time of the mailing of the Joint
Proxy Statement/Prospectus and any amendments or supplements thereto, and at the
time of each of the Xxxxxxxx Stockholders Meeting and the Tosco 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 the light of the circumstances under which they are made,
not misleading. The Joint Proxy Statement/Prospectus will comply, as of its
mailing date, as to form in all material respects with all applicable laws,
including the provisions of the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation is made by Tosco with
respect to information supplied by Xxxxxxxx or Merger Sub for inclusion therein.
4.2 Representations and Warranties of Xxxxxxxx. Except as disclosed
in the Xxxxxxxx disclosure schedule delivered to Tosco concurrently herewith
(the "Xxxxxxxx Disclosure Schedule") or in the Xxxxxxxx SEC Documents, Xxxxxxxx
hereby represents and warrants to Tosco as follows:
(a) Corporate Organization. (i) Xxxxxxxx is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Xxxxxxxx has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character or location
of the properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
would not, either individually or in the aggregate, have a Material Adverse
Effect on Xxxxxxxx. True and complete copies of the Certificate of Incorporation
and By-Laws of Xxxxxxxx, as in effect as of the date of this Agreement, have
previously been made available by Xxxxxxxx to Xxxxx.
(ii) Each Subsidiary of Xxxxxxxx (A) is duly organized and
validly existing under the laws of its jurisdiction of organization, (B) is duly
qualified to do business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so qualified and in which the
failure to be so qualified would have a Material Adverse Effect on Xxxxxxxx and
(C) has all requisite corporate power and authority to own or lease its
properties and assets and to carry on its business as now conducted.
(iii) Merger Sub was formed by Xxxxxxxx solely for the purpose
of engaging in the transactions contemplated hereby and has engaged in no
business and has incurred no liabilities other than in connection with the
transactions contemplated by this Agreement.
-22-
(b) Capitalization. (i) The authorized capital stock of Xxxxxxxx
consists of (A) 500,000,000 shares of Xxxxxxxx Common Stock (each of which
includes one Xxxxxxxx Right), of which, as of January 31, 2001, 283,273,912
shares were issued and outstanding and 23,106,599 shares were held in treasury
and (B) 300,000,000 shares of preferred stock, par value $1.00 per share, of
Xxxxxxxx (the "Xxxxxxxx Preferred Stock," together with the Xxxxxxxx Common
Stock, the "Xxxxxxxx Capital Stock"), of which no shares are issued and
outstanding. From January 31, 2001 to the date of this Agreement, no shares of
Xxxxxxxx Capital Stock have been issued except pursuant to employee and director
stock plans of Xxxxxxxx in effect as of the date hereof (the "Xxxxxxxx Stock
Plans"). All of the issued and outstanding shares of Xxxxxxxx Common Stock have
been duly authorized and validly issued and are fully paid, nonassessable and
free of preemptive rights, with no personal liability attaching to the ownership
thereof. As of the date of this Agreement, except pursuant to the terms of
options and stock issued pursuant to Xxxxxxxx Stock Plans and pursuant to the
Xxxxxxxx Rights, Xxxxxxxx does not have and is not bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares of Xxxxxxxx Capital
Stock or any other equity securities of Xxxxxxxx or any securities representing
the right to purchase or otherwise receive any shares of Xxxxxxxx Capital Stock.
As of January 31, 2001, no shares of Xxxxxxxx Capital Stock were reserved for
issuance, except for 15,783,456 shares of Xxxxxxxx Common Stock reserved for
issuance upon the exercise of stock options pursuant to the Xxxxxxxx Stock Plans
and in respect of the employee and director savings, compensation and deferred
compensation plans described in the Xxxxxxxx 1999 10-K and 5,000,000 shares of
Series B Junior Participating Preferred Stock reserved for issuance in
connection with the Xxxxxxxx Rights Agreement. Xxxxxxxx has no Voting Debt
issued or outstanding.
(ii) The authorized capital stock of Merger Sub consists of 100
shares of common stock, par value $.01 per share, all of which are validly
issued, fully paid and nonassessable, and are owned by Xxxxxxxx free and clear
of any Liens.
(iii) Except for immaterial amounts of directors' qualifying
shares in foreign Subsidiaries of Xxxxxxxx, Xxxxxxxx owns, directly or
indirectly, all of the issued and outstanding shares of capital stock or other
equity ownership interests of each Subsidiary of Xxxxxxxx, free and clear of any
Liens, and all of such shares or equity ownership interests are duly authorized
and validly issued and are fully paid, nonassessable and free of preemptive
rights, with no personal liability attaching to the ownership thereof. No
Subsidiary of Xxxxxxxx has or is bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
the purchase or issuance of any shares of capital stock or any other equity
security of such Subsidiary or any securities representing the right to purchase
or otherwise receive any shares of capital stock or any other equity security of
such Subsidiary. Section 4.2(b)(iii) of the Xxxxxxxx Disclosure Schedule sets
forth a list of each material investment of Xxxxxxxx in any Non-Subsidiary
Affiliate.
(c) Authority; No Violation. (i) Each of Xxxxxxxx and Merger Sub has
full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly approved by the Board of Directors of each of Xxxxxxxx and
Merger Sub. Xxxxxxxx, as sole stockholder of Merger Sub, has approved this
Agreement and the transactions contemplated hereby. The Board
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of Directors of Xxxxxxxx has directed that the issuance of Xxxxxxxx Common Stock
pursuant to this Agreement be submitted to Xxxxxxxx stockholders for approval at
a meeting of Xxxxxxxx stockholders (the "Xxxxxxxx Stockholders Meeting"), and,
except for the approval of the issuance of Xxxxxxxx Common Stock in the Merger
by majority vote at a meeting of Xxxxxxxx'x stockholders at which a quorum is
present (the "Xxxxxxxx Stockholder Approval"), no other corporate proceedings on
the part of Xxxxxxxx or Merger Sub are necessary to approve this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by each of Xxxxxxxx and Merger Sub and
(assuming due authorization, execution and delivery by Tosco) constitutes a
valid and binding obligation of Xxxxxxxx and Merger Sub, enforceable against
Xxxxxxxx and Merger Sub in accordance with its terms.
(ii) Neither the execution and delivery of this Agreement by
Xxxxxxxx and Merger Sub, nor the consummation by Xxxxxxxx and Merger Sub of the
transactions contemplated hereby, nor compliance by Xxxxxxxx and Merger Sub with
any of the terms or provisions hereof, will (A) violate any provision of the
Certificate of Incorporation or By-Laws of Xxxxxxxx or the Articles of
Incorporation or By-Laws of Merger Sub or (B) assuming that the consents and
approvals referred to in Section 4.2(d) are duly obtained, (x) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to Xxxxxxxx or Merger Sub, any of their Subsidiaries or
Non-Subsidiary Affiliates or any of their respective properties or assets or (y)
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, accelerate any right or benefit provided by, or result in the
creation of any Lien upon any of the respective properties or assets of Xxxxxxxx
or Merger Sub, any of their Subsidiaries or Non-Subsidiary Affiliates under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation to
which Xxxxxxxx or Merger Sub, any of their Subsidiaries or their Non-Subsidiary
Affiliates is a party, or by which they or any of their respective properties or
assets may be bound or affected, except (in the case of clause (y) above) for
such violations, conflicts, breaches or defaults which, either individually or
in the aggregate, will not have a Material Adverse Effect on Xxxxxxxx.
(d) Consents and Approvals. Except for (i) the filing of a
notification and report form under the HSR Act and the termination or expiration
of the waiting period under the HSR Act, (ii) the Other Approvals, (iii) the
filing with the SEC of the Joint Proxy Statement/Prospectus and the Form S-4,
(iv) the filing of the Nevada Articles of Merger, (v) any consents,
authorizations, approvals, filings or exemptions in connection with compliance
with the rules of the NYSE, (vi) such filings and approvals as are required to
be made or obtained under the securities or "Blue Sky" laws of various states in
connection with the issuance of the shares of Xxxxxxxx Common Stock pursuant to
this Agreement and (vii) such other consents, approvals, filings and
registrations the failure of which to obtain or make would not reasonably be
expected to have a Material Adverse Effect on Xxxxxxxx, no consents or approvals
of or filings or registrations with any Governmental Entity are necessary in
connection with (A) the execution and delivery by each of Xxxxxxxx and Merger
Sub of this Agreement and (B) the consummation by each of Xxxxxxxx and Merger
Sub of the transactions contemplated by this Agreement.
-24-
(e) Financial Reports and SEC Documents. The Xxxxxxxx 1999 10-K and
all other reports, registration statements, definitive proxy statements or
information statements filed or to be filed by Xxxxxxxx or any of its
Subsidiaries subsequent to December 31, 1998 under the Securities Act or under
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, in the form filed, or
to be filed (collectively, the "Xxxxxxxx SEC Documents"), with the SEC (i)
complied or will comply in all material respects as to form with the applicable
requirements under the Securities Act or the Exchange Act, as the case may be,
and (ii) as of its filing date, did not or will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and each of the
balance sheets contained in or incorporated by reference into any such Xxxxxxxx
SEC Document (including the related notes and schedules thereto) fairly presents
or will fairly present the financial position of the entity or entities to which
it relates as of its date, and each of the statements of income and changes in
stockholders' equity and cash flows or equivalent statements in such Xxxxxxxx
SEC Documents (including any related notes and schedules thereto) fairly
presents or will fairly present the results of operations, changes in
stockholders' equity and changes in cash flows, as the case may be, of the
entity or entities to which it relates for the periods to which it relates, in
each case in accordance with GAAP consistently applied during the periods
involved, except, in each case, as may be noted therein, subject to normal
year-end audit adjustments in the case of unaudited statements.
(f) Absence of Undisclosed Liabilities. Except as disclosed in the
unaudited financial statements (or notes thereto) included in the Xxxxxxxx 10-Q,
neither Xxxxxxxx nor any of its Subsidiaries had at September 30, 2000, or has
incurred since that date through the date hereof, any liabilities or obligations
(whether absolute, accrued, contingent or otherwise) of any nature, except (a)
liabilities, obligations or contingencies which (i) are accrued or reserved
against in the financial statements in the Xxxxxxxx 10-Q or reflected in the
notes thereto or (ii) were incurred in the ordinary course of business and
consistent with past practices, (b) liabilities, obligations or contingencies
which (i) would not reasonably be expected to have a Material Adverse Effect on
Xxxxxxxx, or (ii) have been discharged or paid in full prior to the date hereof,
and (c) liabilities, obligations and contingencies which are of a nature not
required to be reflected in the consolidated financial statements of Xxxxxxxx
and its Subsidiaries prepared in accordance with GAAP consistently applied.
(g) Absence of Certain Changes or Events. (i) Since September 30,
2000, no event or events have occurred that would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on
Xxxxxxxx.
(i) Since September 30, 2000, Xxxxxxxx and its Subsidiaries have
carried on their respective businesses in all material respects in the ordinary
course.
(ii) Since September 30, 2000, neither Xxxxxxxx nor any of its
Subsidiaries has (A) except for such actions as were in the ordinary course of
business or except as required by applicable law, (I) increased the wages,
salaries, compensation, pension, or other fringe benefits or perquisites payable
to any executive officer or director from the amount thereof in effect as of
December 31, 1999, or (II) granted any severance or termination pay, entered
into any contract to make or grant any severance or termination pay, or paid any
bonuses, to any
-25-
executive officer or director or (B) suffered any strike, work stoppage,
slowdown, or other labor disturbance which would be reasonably be expected to
have, (in the case of clause (A) or (B) above) either individually or in the
aggregate, a Material Adverse Effect on Xxxxxxxx.
(iii) Since September 30, 2000, Xxxxxxxx has not declared any
dividends on Xxxxxxxx Common Stock other than its regular quarterly dividends.
(h) Legal Proceedings. There is no suit, action or proceeding or
investigation pending or, to the knowledge of Xxxxxxxx, threatened, against or
affecting Xxxxxxxx or any of its Subsidiaries or, to the knowledge of Xxxxxxxx,
any basis for any such suit, action, proceeding or investigation that would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on Xxxxxxxx, nor is there any judgment, decree, injunction, rule
or order of any Governmental Entity or arbitrator outstanding against Xxxxxxxx
or its Subsidiaries having, or which would reasonably be expected to have, any
such effect.
(i) Compliance with Applicable Law. Xxxxxxxx and each of its
Subsidiaries hold all licenses, franchises, permits and authorizations necessary
for the lawful conduct of their respective businesses under and pursuant to
each, and have complied in all respects with and are not in default in any
material respect under any, applicable law, statute, order, rule or regulation
of any Governmental Entity relating to Xxxxxxxx or any of its Subsidiaries,
except where the failure to hold such license, franchise, permit or
authorization or such noncompliance or default would not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
Xxxxxxxx.
(j) Environmental Liability. There are no legal, administrative,
arbitral or other proceedings, claims, actions, causes of action, private
environmental investigations or remediation activities or governmental
investigations of any nature seeking to impose, or that could reasonably result
in the imposition of, on Xxxxxxxx, any liability or obligation arising under
common law or under any local, state or federal environmental statute,
regulation or ordinance including CERCLA, pending or threatened against
Xxxxxxxx, which liability or obligation, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect on
Xxxxxxxx. To the knowledge of Xxxxxxxx, there is no reasonable basis for any
such proceeding, claim, action or governmental investigation that would impose
any liability or obligation that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on Xxxxxxxx. Xxxxxxxx
is not subject to any agreement, order, judgment, decree, letter or memorandum
by or with any court, governmental authority, regulatory agency or third party
imposing any liability or obligation with respect to the foregoing that, either
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Xxxxxxxx.
(k) Employee Benefit Plans; Labor Matters. (i) There does not now
exist, and to the knowledge of Xxxxxxxx, there are no existing circumstances
that could reasonably be expected to result in, any Controlled Group Liability
to Xxxxxxxx or any of its Subsidiaries that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect on Xxxxxxxx.
(ii) Except as would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect on Xxxxxxxx, (A) each of the
Xxxxxxxx Benefit Plans
-26-
has been operated and administered in all material respects in accordance with
applicable law and administrative rules and regulations of any Governmental
Entity, including, but not limited to, ERISA and the Code, and (B) there are no
pending or threatened claims (other than claims for benefits in the ordinary
course), lawsuits or arbitrations which have been asserted or instituted, and,
to the knowledge of Xxxxxxxx, no set of circumstances exists which may
reasonably give rise to a claim or lawsuit, against the Xxxxxxxx Benefit Plans,
any fiduciaries thereof with respect to their duties to the Xxxxxxxx Benefit
Plans or the assets of any of the trusts under any of the Xxxxxxxx Benefit Plans
which could reasonably be expected to result in any material liability of
Xxxxxxxx or any of its Subsidiaries to the Pension Benefit Guaranty Corporation,
the U.S. Department of the Treasury, the U.S. Department of Labor, any Xxxxxxxx
Benefit Plan, any participant in a Xxxxxxxx Benefit Plan, or any other party.
(iii) Except as would not reasonably be expected to have a
Material Adverse Effect on Xxxxxxxx, (x) there is no labor dispute, strike,
slowdown or work stoppage against Xxxxxxxx or any Subsidiary of Xxxxxxxx pending
or, to the knowledge of Xxxxxxxx, threatened against Xxxxxxxx or any Subsidiary
of Xxxxxxxx and (y) no unfair labor practice or labor charge or complaint has
occurred with respect to Xxxxxxxx or any Subsidiary of Xxxxxxxx.
(l) State Takeover Laws. (i) The Board of Directors of Xxxxxxxx has
approved this Agreement and the transactions contemplated by this Agreement as
required under any applicable state takeover laws so that any such state
takeover laws will not apply to this Agreement or any of the transactions
contemplated hereby.
(m) Opinion of Financial Advisor. Xxxxxxxx has received the opinion
of Xxxxxx Xxxxxxx & Co. Incorporated, dated the date hereof, to the effect that
the Exchange Ratio is fair to Xxxxxxxx from a financial point of view.
(n) Board Approval. The Board of Directors of Xxxxxxxx, at a meeting
duly called and held, has by unanimous vote of those directors present (i)
determined that this Agreement and the transactions contemplated hereby are
advisable, fair to and in the best interests of the stockholders of Xxxxxxxx,
(ii) approved and adopted this Agreement and (iii) recommended that the issuance
of Xxxxxxxx Common Stock pursuant to this Agreement be approved by the holders
of Xxxxxxxx Common Stock.
(o) Broker's Fees. Neither Xxxxxxxx, Merger Sub nor any of their
Subsidiaries nor any of their respective officers or directors has employed any
broker or finder or incurred any liability for any broker's fees, commissions or
finder's fees in connection with the transactions contemplated by this
Agreement, excluding fees to be paid to Xxxxxx Xxxxxxx & Co. Incorporated.
(p) Taxes. Each of Xxxxxxxx and its Subsidiaries has duly and timely
filed all Tax Returns required to be filed by it, and all such Tax Returns are
true, complete and accurate in all respects, except to the extent that any
failure to have filed or any inaccuracies in such Tax Returns would not
reasonably be expected to have a Material Adverse Effect on Xxxxxxxx. Xxxxxxxx
and each of its Subsidiaries has paid all Taxes required to be paid by it, and
has paid all Taxes that it was required to withhold from amounts owing to any
employee, creditor or third party, except to the extent that any failure to pay
such Taxes would not reasonably be expected to
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have a Material Adverse Effect on Xxxxxxxx. There are no pending or, to the
knowledge of Xxxxxxxx, threatened audits, examinations, investigations,
deficiencies, claims or other proceedings in respect of Taxes relating to
Xxxxxxxx or any Subsidiary of Xxxxxxxx, except for those which would not
reasonably be expected to have a Material Adverse Effect on Xxxxxxxx. There are
no liens for Taxes upon the assets of Xxxxxxxx or any Subsidiary of Xxxxxxxx,
other than liens for current Taxes not yet due, liens for Taxes that are being
contested in good faith by appropriate proceedings, and liens for Taxes which
would not reasonably be expected to have a Material Adverse Effect on Xxxxxxxx.
Neither Xxxxxxxx nor any of its Subsidiaries has requested any extension of time
within which to file any Tax Returns in respect of any taxable year which have
not since been filed, nor made any request for waivers of the time to assess any
Taxes that are pending or outstanding, except where such request or waiver would
not reasonably be expected to have a Material Adverse Effect on Xxxxxxxx. The
consolidated federal income Tax Returns of Xxxxxxxx have been examined, or the
statute of limitations has closed, with respect to all taxable years through and
including 1995. Neither Xxxxxxxx nor any of its Subsidiaries has any liability
for Taxes of any Person (other than Xxxxxxxx and its Subsidiaries) under
Treasury Regulation Section 1.1502-6 (or any comparable provision of state,
local or foreign law), except as would not reasonably be expected to have a
Material Adverse Effect on Xxxxxxxx. Neither Xxxxxxxx nor any Subsidiary of
Xxxxxxxx is a party to any agreement (with any Person other than Xxxxxxxx and/or
any of its Subsidiaries) relating to the allocation or sharing of Taxes, except
as would not reasonably be expected to have a Material Adverse Effect on
Xxxxxxxx.
(q) Reorganization under the Code. As of the date of this Agreement,
neither Xxxxxxxx nor any of its Subsidiaries has taken any action or knows of
any fact that is reasonably likely to prevent the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code.
(r) Form S-4; Joint Proxy Statement/Prospectus. None of the
information to be supplied by Xxxxxxxx or its Subsidiaries in the Form S-4 or
the Joint Proxy Statement/Prospectus will, at the time of the mailing of the
Joint Proxy Statement/Prospectus and any amendments or supplements thereto, and
at the time of each of the Xxxxxxxx Stockholders Meeting and the Tosco
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 the light of the circumstances under which they
are made, not misleading. The Joint Proxy Statement/Prospectus will comply, as
of its mailing date, as to form in all material respects with all applicable
laws, including the provisions of the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation is made by Xxxxxxxx or
Merger Sub with respect to information supplied by Tosco for inclusion therein.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Covenants of Tosco. During the period from the date of this
Agreement and continuing until the Effective Time, Tosco agrees as to itself and
its Subsidiaries that (except as expressly contemplated or permitted by this
Agreement or Section 5.1 (including its subsections) of the Tosco Disclosure
Schedule):
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(a) Ordinary Course. (i) Tosco 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 its reasonable best efforts to keep available the services of their
respective present officers and key employees, 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.
(ii) Tosco 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 or contemplated by the 2001
capital budget approved by the Tosco Board of Directors and previously disclosed
to Xxxxxxxx.
(b) Dividends; Changes in Share Capital. Tosco 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 (x) the declaration and payment of regular quarterly cash
dividends not in excess of $0.08 per share of Tosco Common Stock (subject to
increase of up to $0.01 per share per year in accordance with past practices)
with usual record and payment dates for such dividends in accordance with past
dividend practice, (y) the payment of accrued amounts on any Tosco Toprs
pursuant to the terms of, and in connection with the redemption of, such Tosco
Toprs and (z) the declaration and payment of regular dividends from a Subsidiary
of Tosco to Tosco or to another Subsidiary of Tosco in accordance with past
dividend practice, (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 Tosco 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,
except for the redemption of the Tosco Toprs or the purchase from time to time
by Tosco of Tosco Common Stock (and the associated Tosco Rights) in connection
with the Tosco Benefit Plans in the ordinary course of business consistent with
past practice.
(c) Issuance of Securities. Tosco shall not, and shall not permit
any of its Subsidiaries to, issue, deliver, sell, pledge or dispose of, or
authorize or propose the issuance, delivery, sale, pledge or disposition of, any
shares of its capital stock of any class, any Voting Debt or any securities
convertible into or exercisable for, or any rights, warrants, calls or options
to acquire, any such shares or Voting Debt, or enter into any commitment,
arrangement, undertaking or agreement with respect to any of the foregoing,
other than (i) the issuance of Tosco Common Stock (and the associated Tosco
Rights) upon the exercise of Tosco Stock Options in accordance with their
present terms or pursuant to Tosco Stock Options or other stock-based awards
granted pursuant to clause (ii) below or the issuance of Tosco Common Stock on
conversion of Tosco Toprs, (ii) the granting of Tosco Stock Options or other
stock-based awards of or to acquire shares of Tosco Common Stock granted under
Tosco Benefit Plans outstanding on the date hereof in the ordinary course of
business consistent with past practice, (iii) issuances, sales or deliveries by
a wholly-owned Subsidiary of Tosco of capital stock to such
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Subsidiary's parent or another wholly-owned Subsidiary of Tosco, (iv) pursuant
to acquisitions and investments as disclosed in Section 5.1(e) or 5.1(g) of the
Tosco Disclosure Schedule or the financings therefor or (v) issuances in
accordance with the Tosco Rights Agreement.
(d) Governing Documents. Except to the extent required to comply
with its obligations hereunder or with applicable law, Tosco shall not amend or
propose to so amend its articles of incorporation or by-laws.
(e) No Acquisitions. Other than acquisitions in the ordinary course
of business consistent with past practice, Tosco shall not, and shall not permit
any of its Subsidiaries to, acquire or agree to acquire by merger or
consolidation, 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 (excluding
the acquisition of assets used in the operations of the business of Tosco and
its Subsidiaries in the ordinary course, which assets do not constitute a
business unit, division or all or substantially all of the assets of the
transferor).
(f) No Dispositions. Other than dispositions referred to in the
Tosco SEC Documents filed prior to the date of this Agreement, Tosco shall not,
and shall not permit any of its Subsidiaries to, sell, lease or otherwise
dispose of, or agree to sell, lease or otherwise dispose of, any of its assets
(including capital stock of Subsidiaries of Tosco) other than in the ordinary
course of business consistent with past practice.
(g) Investments; Indebtedness. Tosco 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) loans or investments by
Tosco or a Subsidiary of Tosco to or in Tosco or any Subsidiary of Tosco, (y) in
the ordinary course of business consistent with past practice which are not,
individually or in the aggregate, material to Tosco and its Subsidiaries taken
as a whole (provided that none of such transactions referred to in this clause
(y) presents a material risk of making it more difficult to obtain any approval
or authorization required in connection with the Merger under Regulatory Law) or
(ii) except in the ordinary course consistent with past practice, incur any
indebtedness for borrowed money or guarantee any such indebtedness of another
Person, issue or sell any debt securities or warrants or other rights to acquire
any debt securities of Tosco or any of its Subsidiaries, guarantee any debt
securities of another person, enter into any "keep well" or other agreement to
maintain any financial statement condition of another Person (other than any
wholly owned Subsidiary) or enter into any arrangement having the economic
effect of any of the foregoing (collectively, "Tosco Indebtedness").
(h) Tax-Free Qualification. Tosco 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 5.1) that would prevent or impede the Merger from qualifying as
a "reorganization" within the meaning of Section 368(a) of the Code.
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(i) Compensation. Except (x) as required by law or by the terms of
any collective bargaining agreement or other agreement currently in effect
between Tosco or any Subsidiary of Tosco and any director, officer or employee
thereof or (y) in the ordinary course of business consistent with past practice,
Tosco shall not increase the amount of compensation of, or pay any severance to,
any director, officer or key employee of Tosco or any material Subsidiary or
business unit of Tosco, or make any increase in or commitment to increase any
employee benefits, grant any additional Tosco Stock Options, adopt or amend or
make any commitment to adopt or amend any Benefit Plan or fund or make any
contribution to any Tosco Benefit Plan or any related trust or other funding
vehicles, other than regularly scheduled contributions to trusts funding
qualified plans. Any option granted or committed to be granted after the date
hereof shall not accelerate as a result of the approval or consummation of any
transaction contemplated by this Agreement.
(j) Accounting Methods; Tax Elections. Except as disclosed in Tosco
SEC Documents filed prior to the date of this Agreement, or as required by a
Governmental Entity, Tosco shall not change in any material respect its methods
of accounting in effect at September 30, 2000, except as required by changes in
GAAP as concurred in by Tosco's independent public accountants. Tosco shall not
(i) change its fiscal year or (ii) make any Tax election that, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect
on Tosco.
(k) Certain Actions. Tosco and its Subsidiaries shall not take any
action or omit to take any action for the purpose of preventing, delaying or
impeding the consummation of the Merger or the other transactions contemplated
by this Agreement.
(l) No Related Actions. Tosco shall not, and shall not permit any
of its Subsidiaries to, agree or commit to do any of the foregoing.
5.2 Covenants of Xxxxxxxx. During the period from the date of this
Agreement and continuing until the Effective Time, Xxxxxxxx agrees as to itself
and its Subsidiaries that (except as expressly contemplated or permitted by this
Agreement or Section 5.2 (including its subsections) of the Xxxxxxxx Disclosure
Schedule):
(a) Ordinary Course. (i) Xxxxxxxx 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 their reasonable best 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.
(ii) Xxxxxxxx shall not, and shall not permit any of its
Subsidiaries to, enter into any new material line of business or dispose of any
material line of business.
(b) Dividends; Changes in Share Capital. Xxxxxxxx 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 (x) the declaration and
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payment of regular quarterly cash dividends with usual record and payment dates
for such dividends in accordance with past dividend practice and (y) the
declaration and payment of regular dividends from a Subsidiary of Xxxxxxxx to
Xxxxxxxx or to another Subsidiary of Xxxxxxxx in accordance with past dividend
practice or (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 Xxxxxxxx which remains a wholly
owned Subsidiary after consummation of such transaction.
(c) Governing Documents. Except (i) to the extent required to comply
with their respective obligations hereunder or with applicable law or (ii) to
increase the number of shares of common stock authorized by its certificate of
incorporation, Xxxxxxxx and Merger Sub shall not amend or propose to so amend
their respective certificate or articles of incorporation or by-laws.
(d) No Acquisitions. Other than acquisitions in the ordinary course
of business consistent with past practice, Xxxxxxxx shall not, and shall not
permit any of its Subsidiaries to, acquire or agree to acquire by merger or
consolidation, 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 (excluding
the acquisition of assets used in the operations of the business of Xxxxxxxx and
its Subsidiaries in the ordinary course, which assets do not constitute a
business unit, division or all or substantially all of the assets of the
transferor), unless such transaction could not reasonably be expected to prevent
or materially delay or impede the consummation of the transactions contemplated
by this Agreement.
(e) Tax-Free Qualification. Xxxxxxxx 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 5.2) that would prevent or impede the Merger from qualifying as
a "reorganization" within the meaning of Section 368(a) of the Code.
(f) Certain Actions. Xxxxxxxx and its Subsidiaries shall not take
any action or omit to take any action for the purpose of preventing, delaying or
impeding the consummation of the Merger or the other transactions contemplated
by this Agreement.
(g) No Related Actions. Xxxxxxxx shall not, and shall not permit
any of its Subsidiaries to, agree or commit to do any of the foregoing.
5.3 Governmental Filings. Tosco and Xxxxxxxx shall (A) confer on a
reasonable basis with each other and (B) report to each other (to the extent
permitted by law or regulation or any applicable confidentiality agreement) on
operational matters. Tosco and Xxxxxxxx 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, if requested by the
other and (to the extent permitted by law or regulation or any applicable
confidentiality agreement) deliver to the other party copies of all such
reports, announcements and publications promptly upon request.
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5.4 Control of Other Party's Business. Nothing contained in this
Agreement shall give Tosco, directly or indirectly, the right to control or
direct Xxxxxxxx'x operations or give Xxxxxxxx, directly or indirectly, the right
to control or direct Tosco's operations prior to the Effective Time. Prior to
the Effective Time, each of Tosco and Xxxxxxxx shall exercise, consistent with
the terms and conditions of this Agreement, complete control and supervision
over its respective operations.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Preparation of Proxy Statement; Stockholders Meetings. (a) As
promptly as reasonably practicable following the date hereof, Xxxxxxxx and Tosco
shall cooperate in preparing and each shall cause to be filed with the SEC
mutually acceptable proxy materials which shall constitute the Joint Proxy
Statement/Prospectus and Xxxxxxxx shall prepare and file with the SEC the Form
S-4. The Joint Proxy Statement/Prospectus will be included as a prospectus in
and will constitute a part of the Form S-4 as Xxxxxxxx'x prospectus. Each of
Xxxxxxxx and Xxxxx shall use reasonable best efforts to have the Joint Proxy
Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by
the SEC and to keep the Form S-4 effective as long as is necessary to consummate
the Merger and the transactions contemplated hereby. Xxxxxxxx and Tosco shall,
as promptly as practicable after receipt thereof, provide each other with copies
of any written comments, and advise each other of any oral comments, with
respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the
SEC. The parties shall cooperate and provide the other party with a reasonable
opportunity to review and comment on any amendment or supplement to the Joint
Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC
and will provide each other 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
Xxxxxxxx and Xxxxx, 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;
and provided, further, that Xxxxxxxx, in connection with a Change in the
Xxxxxxxx Recommendation, and Tosco, in connection with a Change in the Tosco
Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or
Form S-4 (including by incorporation by reference) pursuant to a Qualifying
Amendment to effect such a Change, and in such event, 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, and shall be subject to
the right of each party to have its Board of Directors' deliberations and
conclusions to be accurately described. Xxxxxxxx will use reasonable best
efforts to cause the Joint Proxy Statement/Prospectus to be mailed to Xxxxxxxx
stockholders, and Tosco will use reasonable best efforts to cause the Joint
Proxy Statement/Prospectus to be mailed to Tosco stockholders, in each case, as
promptly as practicable after the Form S-4 is declared effective under the
Securities Act. 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 Xxxxxxxx
Common Stock issuable in connection with the Merger for offering or sale in any
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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 Xxxxxxxx or Tosco, or any of their respective
affiliates, officers or directors, is discovered by Xxxxxxxx or Tosco and such
information 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 discovering such
information shall promptly notify the other party hereto and, to the extent
required by law, rules or regulations, an appropriate amendment or supplement
describing such information shall be promptly filed with the SEC and
disseminated to the stockholders of Xxxxxxxx and Xxxxx.
(b) Tosco shall duly take all lawful action to call, give notice of,
convene and hold the Tosco Stockholders Meeting as soon as practicable on a date
determined in accordance with the mutual agreement of Xxxxxxxx and Xxxxx for the
purpose of obtaining the Tosco Stockholder Approval and shall take all lawful
action to solicit the Tosco Stockholder Approval. The Board of Directors of
Tosco shall recommend the approval of the plan of merger contained in this
Agreement by the stockholders of Tosco to the effect as set forth in Section
4.1(p) (the "Tosco Recommendation"), and shall not, unless Xxxxxxxx makes a
Change in the Xxxxxxxx Recommendation, (x) withdraw, modify or qualify (or
propose to withdraw, modify or qualify) in any manner adverse to Xxxxxxxx such
recommendation or (y) take any action or make any statement in connection with
the Tosco Stockholders Meeting inconsistent with such recommendation
(collectively, a "Change in the Tosco Recommendation"); provided, however, that
the Board of Directors of Tosco may make a Change in the Tosco Recommendation
pursuant to Section 6.5 hereof.
(c) Xxxxxxxx shall duly take all lawful action to call, give notice
of, convene and hold the Xxxxxxxx Stockholders Meeting as soon as practicable on
a date determined in accordance with the mutual agreement of Xxxxxxxx and Xxxxx
for the purpose of obtaining the Xxxxxxxx Stockholder Approval and shall take
all lawful action to solicit the Xxxxxxxx Stockholder Approval. The Board of
Directors of Xxxxxxxx shall recommend the approval of issuance of Xxxxxxxx
Common Stock in the Merger by the stockholders of Xxxxxxxx (the "Xxxxxxxx
Recommendation"), and shall not, unless Tosco makes a Change in the Tosco
Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify
or qualify) in any manner adverse to Tosco such recommendation or (y) take any
action or make any statement in connection with the Xxxxxxxx Stockholders
Meeting inconsistent with such recommendation (collectively, a "Change in the
Xxxxxxxx Recommendation"); provided, however, that the Board of Directors of
Xxxxxxxx may make a Change in the Xxxxxxxx Recommendation pursuant to Section
6.5 hereof.
6.2 Xxxxxxxx Board of Directors and Officers; RM&T Headquarters.
(a) At the Effective Time, Xxxxxxxx shall take all requisite action to (i)
expand its Board of Directors by one member and (ii) cause Xxxxxx X. X'Xxxxxx to
be appointed to its Board of Directors.
(b) Immediately following the Effective Time, Xxxxxxxx shall take
all requisite action to appoint Xxxxxx X. X'Xxxxxx to serve, at the discretion
of the Board of Directors and the Chief Executive Officer of Xxxxxxxx, as Vice
Chairman of Xxxxxxxx and head of Xxxxxxxx'x
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refining, marketing and transportation division, with primary responsibility for
assisting in (x) the orderly integration of Tosco's operations with Xxxxxxxx'x
refining, marketing and transportation operations during the transition period
and (y) the establishment of a management team for the integrated refining,
marketing and transportation operations drawing from the best employees of each
of Xxxxxxxx and Tosco. Immediately following the Effective Time, Xxxxxxxx shall
enter into an employment agreement with Xxxxxx X. X'Xxxxxx substantially on the
terms set forth in the letter dated February 4, 2001 from Xx. X'Xxxxxx to
Xxxxxxxx.
(c) As soon as practicable following the Effective Time, the
executive headquarters for the combined refining, marketing and transportation
operations of both the Surviving Corporation and Xxxxxxxx shall be in the
Phoenix, Arizona area.
6.3 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 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 or the HSR Act, as applicable
(other than documents which such party is not permitted to disclose under
applicable law), and (b) 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
(i) any law, treaty, rule or regulation of any Governmental Entity applicable to
such party or any contract requires such party or its Subsidiaries to restrict
or prohibit access to any such properties or information or (ii) the information
is subject to confidentiality obligations to a third party. The parties will
hold any information obtained pursuant to this Section 6.3 in confidence in
accordance with, and shall otherwise be subject to, the provisions of the
confidentiality agreement dated February 2, 2001, between Tosco and Xxxxxxxx
(the "Confidentiality Agreement"), which Confidentiality Agreement shall
continue in full force and effect. Any investigation by either Xxxxxxxx or Tosco
shall not affect the representations and warranties of the other.
6.4 Reasonable Best Efforts. (a) Subject to the terms and conditions
of this Agreement, each party hereto will use its reasonable best efforts to
take, or cause to be taken, all actions, and do, or cause to be done, all things
necessary, proper or advisable under this Agreement and 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, and other documents and to
obtain as promptly as practicable all Necessary Consents and all other consents,
waivers, licenses, orders, registrations, approvals, permits, rulings,
authorizations and clearances 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 (collectively, the
"Required Approvals") and (ii) taking all reasonable steps as may be necessary
to obtain all such Necessary Consents and the Required Approvals. In furtherance
and not in limitation of the foregoing, each of Xxxxxxxx and Xxxxx agrees (i) to
make, as promptly as practicable, (A) an
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appropriate filing of a Notification and Report Form pursuant to the HSR Act
with respect to the transactions contemplated hereby, (B) appropriate filings
with the European Commission, if required, in accordance with applicable
competition, merger control, antitrust, investment or similar laws, and (C) all
other necessary filings with other Governmental Entities relating to the Merger,
and, to supply as promptly as practicable any additional information or
documentation that may be requested pursuant to such laws or by such authorities
and to use reasonable best efforts to cause the expiration or termination of the
applicable waiting periods under the HSR Act and the receipt of Required
Approvals under such other laws or from such authorities as soon as practicable
and (ii) not to extend any waiting period under the HSR Act or enter into any
agreement with the FTC or the DOJ not to consummate the transactions
contemplated by this Agreement, except with the prior written consent of the
other parties hereto (which shall not be unreasonably withheld or delayed).
Notwithstanding anything to the contrary in this Agreement, neither Xxxxxxxx nor
Tosco nor any of their respective Subsidiaries shall be required to hold
separate (including by trust or otherwise) or to divest any of their respective
businesses or assets, or to take or agree to take any action or agree to any
imitation that could reasonably be expected to have a Material Adverse Effect on
Xxxxxxxx or Xxxxx or to substantially impair the benefits to Xxxxxxxx expected,
as of the date hereof, to be realized from consummation of the Merger, and
neither Xxxxxxxx or Xxxxx shall be required to agree to or effect any
divestiture, hold separate any business or take any other action that is not
conditional on the consummation of the Merger.
(b) Each of Tosco and Xxxxxxxx shall, in connection with the efforts
referenced in Section 6.4(a) to obtain all Required Approvals, 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) subject to applicable law, permit the other party to review in
advance any proposed written communication between it and any Governmental
Entity, (iii) promptly inform each other of (and, at the other party's
reasonable request, supply to such other party) any communication (or other
correspondence or memoranda) received by such party from, or given by such party
to, the DOJ, 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
(iv) consult with each other in advance to the extent practicable of any meeting
or conference with the DOJ, the FTC or any 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.
(c) In furtherance and not in limitation of the covenants of the
parties contained in Section 6.4(a) and 6.4(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, or if any
statute, rule, regulation, executive order, decree, injunction or administrative
order is enacted, entered, promulgated or enforced by a Governmental Entity
which would make the Merger or the other transactions contemplated hereby
illegal or would otherwise prohibit or materially impair or delay the
consummation of the Merger or the other transactions contemplated hereby, each
of Tosco and Xxxxxxxx shall cooperate in all respects with each other and use
its respective reasonable best efforts, including, subject to Section 6.4(a),
selling, holding
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separate or otherwise disposing of or conducting their business in a specified
manner, or agreeing to sell, hold separate or otherwise dispose of or conduct
their business in a specified manner or permitting the sale, holding separate or
other disposition of, any assets of Xxxxxxxx, Xxxxx or their respective
Subsidiaries or the conducting of their business in a specified manner, 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 Merger or the other transactions
contemplated by this Agreement and to have such statute, rule, regulation,
executive order, decree, injunction or administrative order repealed, rescinded
or made inapplicable so as to permit consummation of the transactions
contemplated by this Agreement. Notwithstanding the foregoing or any other
provision of this Agreement, nothing in this Section 6.4 shall limit a party's
right to terminate this Agreement pursuant to Section 8.1(b) or 8.1(c) so long
as such party has up to then complied with its obligations under this Section
6.4.
(d) Each of Xxxxxxxx and Xxxxx and their respective Boards of
Directors shall, if any state takeover statute or similar statute becomes
applicable to this Agreement, the Merger or any other transactions contemplated
hereby, take all action reasonably necessary to ensure that the Merger and the
other transactions contemplated by this Agreement may be consummated as promptly
as practicable on the terms contemplated hereby and otherwise to minimize the
effect of such statute or regulation on this Agreement, the Merger and the other
transactions contemplated hereby.
6.5 Acquisition Proposals. (a) Each of Xxxxxxxx and Tosco agrees
that neither it nor any of its Subsidiaries nor any of the officers and
directors of it or its Subsidiaries shall, and that it shall use its reasonable
best efforts to cause its and its Subsidiaries' employees, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) not to, directly or indirectly, (i)
initiate, solicit, encourage or knowingly facilitate any inquiries or the making
of any proposal or offer with respect to, or a transaction to effect, a merger,
reorganization, share exchange, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving it
or any of its Significant Subsidiaries, or any purchase or sale of 20% or more
of the consolidated assets (including stock of its Subsidiaries) of it and its
Subsidiaries, taken as a whole, or any purchase or sale of, or tender or
exchange offer for, its equity securities that, if consummated, would result in
any Person (or the stockholders of such Person) beneficially owning securities
representing 20% or more of its total voting power (or of the surviving parent
entity in such transaction) or the voting power of any of its Significant
Subsidiaries (any such proposal, offer or transaction (other than a proposal or
offer made by any other party to this Agreement or an Affiliate thereof) being
hereinafter referred to as an "Acquisition Proposal"), (ii) 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, (iii) approve or recommend, or propose publicly to approve
or recommend, any Acquisition Proposal or (iv) approve or recommend, or propose
to approve or recommend, or execute or enter into, any letter of intent,
agreement in principle, merger agreement, acquisition agreement, option
agreement or other similar agreement or propose publicly or agree to do any of
the foregoing related to any Acquisition Proposal.
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(b) Notwithstanding anything in this Agreement to the contrary, each
of Xxxxxxxx and Xxxxx (and their respective Boards of Directors) shall be
permitted to (A) comply with Rule 14d-9 and Rule 14e-2 promulgated under the
Exchange Act with regard to an Acquisition Proposal (to the extent applicable),
(B) effect a Change in the Xxxxxxxx Recommendation or a Change in the Tosco
Recommendation, as the case may be, or (C) engage in 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, in any such case referred to in clause (B) or (C), (I) in the case
of Xxxxxxxx, the Xxxxxxxx Stockholders Meeting shall not have occurred, or in
the case of Tosco, the Tosco Stockholders Meeting shall not have occurred, (II)
(x) in the case of clause (B) above, it has received an unsolicited bona fide
written Acquisition Proposal from a third party and its Board of Directors
concludes in good faith that such Acquisition Proposal constitutes a Superior
Proposal and (y) in the case of clause (C) above, its Board of Directors
concludes in good faith that there is a reasonable likelihood that such
Acquisition Proposal could constitute a Superior Proposal, (III) in the case of
clause (B) or (C) above, its Board of Directors, after consultation with outside
counsel, determines in good faith that there is a reasonable probability that
the failure to take such action would be inconsistent with its fiduciary duties
under applicable law, (IV) 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
having provisions that are customary in such agreements, as advised by counsel,
provided that if such confidentiality agreement contains provisions that are
less restrictive than the comparable provision, or omits restrictive provisions,
contained in the Confidentiality Agreement, then the Confidentiality Agreement
will be deemed to be amended to contain only such less restrictive provisions or
to omit such restrictive provisions, as the case may be, and (V) prior to
providing any information or data to any Person or entering into discussions or
negotiations with any Person, it notifies the other party promptly of such
inquiries, proposals or offers received by, any such information requested from,
or any such discussions or negotiations sought to be initiated or continued
with, any of its representatives indicating, in connection with such notice, the
name of such Person and the material terms and conditions of any inquiries,
proposals or offers. Each of Xxxxxxxx and Xxxxx agrees that it will promptly
keep each other reasonably informed of the status and terms of any inquiries,
proposals or offers and the status and terms of any discussions or negotiations,
including the identity of the party making such inquiry, proposal or offer. Each
of Xxxxxxxx and Tosco agrees that it will, and will cause its officers,
directors and representatives to, immediately cease and cause to be terminated
any activities, discussions or negotiations existing as of the date of this
Agreement with any parties (other than the parties to this Agreement) conducted
heretofore with respect to any Acquisition Proposal. Each of Xxxxxxxx and Xxxxx
agrees that it will use reasonable best efforts to promptly inform its
directors, officers, key employees, agents and representatives of the
obligations undertaken in this Section 6.5. Nothing in this Section 6.5 shall
(x) permit Xxxxxxxx or Tosco to terminate this Agreement (except as specifically
provided in Article VIII hereof) or (y) affect or limit any other obligation of
Xxxxxxxx or Xxxxx under this Agreement.
6.6 Fees and Expenses. Subject to Section 8.2, whether or not the
Merger is consummated, all Expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such Expenses, except Expenses incurred in connection with the filing, printing
and mailing of the Joint Proxy
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Statement/Prospectus and Form S-4, which shall be shared equally by Xxxxxxxx and
Tosco. The parties hereto shall cooperate with each other in preparing,
executing and filing any Tax Returns.
6.7 Directors' and Officers' Indemnification and Insurance.
Following the Effective Time, Xxxxxxxx shall (i) indemnify and hold harmless,
and provide advancement of expenses to, all past and present directors, officers
and employees of Tosco and its Subsidiaries (in all of their capacities) (A) to
the same extent such persons are indemnified or have the right to advancement of
expenses as of the date of this Agreement by Tosco pursuant to Tosco's Amended
and Restated Articles of Incorporation, By-laws and indemnification agreements,
if any, in existence on the date hereof with, or for the benefit of, any
directors, officers and employees of Tosco and its Subsidiaries and (B) without
limitation to clause (A), to the fullest extent permitted by law, in each case
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), (ii) include and
cause to be maintained in effect in the Surviving Corporation's (or any
successor's) articles of incorporation and by-laws for a period of six years
after the Effective Time, provisions regarding elimination of liability of
directors, indemnification of officers, directors and employees and advancement
of expenses which are, in the aggregate, no less advantageous to the intended
beneficiaries than the corresponding provisions contained in the current Amended
and Restated Articles of Incorporation and By-laws of Tosco and (iii) 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 Tosco (provided that Xxxxxxxx (or any successor) may
substitute therefor one or more 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; provided, however, that in no
event shall Xxxxxxxx be required to expend in any one year an amount in excess
of 200% of the annual premiums currently paid by Tosco for such insurance; and,
provided further that if the annual premiums of such insurance coverage exceed
such amount, Xxxxxxxx shall obtain a policy with the greatest coverage available
for a cost not exceeding such amount. The obligations of Xxxxxxxx under this
Section 6.7 shall not be terminated or modified in such a manner as to adversely
affect any indemnitee to whom this Section 6.7 applies without the consent of
such affected indemnitee (it being expressly agreed that the indemnitees to whom
this Section 6.7 applies shall be third-party beneficiaries of this Section
6.7).
6.8 Employee Benefits. (a) Xxxxxxxx agrees that, from and after the
Effective Time, Xxxxxxxx and its Subsidiaries shall assume and honor all Tosco
Benefit Plans in accordance with their terms as in effect immediately before the
Effective Time, subject to any amendment or termination thereof that may be
permitted by such terms. For a period of not less than one year following the
Effective Time, Xxxxxxxx shall provide, or shall cause to be provided, to
individuals who are employees of the Tosco and its Subsidiaries immediately
before the Effective Time and who continue to be employed by Xxxxxxxx and its
Subsidiaries after the Effective Time (the "Tosco Employees") compensation and
employee benefits that are, in the aggregate, not less favorable than those
provided to Tosco Employees immediately before the Effective Time, as disclosed
by Tosco to Xxxxxxxx before the date of this Agreement. The foregoing shall not
be construed to prevent the termination of employment of any Tosco Employee or
the amendment or termination of any particular Tosco Benefit Plan to the extent
permitted by its terms as in
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effect immediately before the Effective Time; provided, however, that at the
option of an affected Tosco Employee (up to a total of fifteen Tosco Employees),
any split dollar life insurance policies shall be continued.
(b) For all purposes under the employee benefit plans of Xxxxxxxx
and its Subsidiaries providing benefits to any Tosco Employees after the
Effective Time (the "New Plans"), each Tosco Employee shall be credited with his
or her years of service with Tosco and its Subsidiaries and predecessor
employers before the Effective Time, to the same extent as such Tosco Employee
was entitled, before the Effective Time, to credit for such service under any
similar Tosco Benefit Plans, except to the extent such credit would result in a
duplication of benefits. In addition, and without limiting the generality of the
foregoing: (i) each Tosco Employee shall be immediately eligible to participate,
without any waiting time, in any and all New Plans to the extent coverage under
such New Plan replaces coverage under a Tosco Benefit Plan in which such Tosco
Employee participated immediately before the Effective Time (such plans,
collectively, the "Old Plans"); and (ii) for purposes of each New Plan providing
medical, dental, pharmaceutical and/or vision benefits to any Tosco Employee,
Xxxxxxxx shall cause all pre-existing condition exclusions and actively-at-work
requirements of such New Plan to be waived for such employee and his or her
covered dependents, and Xxxxxxxx shall cause any eligible expenses incurred by
such employee and his or her covered dependents during the portion of the plan
year of the Old Plan ending on the date such employee's participation in the
corresponding New Plan begins to be taken into account under such New Plan for
purposes of satisfying all deductible, coinsurance and maximum out-of-pocket
requirements applicable to such employee and his or her covered dependents for
the applicable plan year as if such amounts had been paid in accordance with
such New Plan.
6.9 Public Announcements. Xxxxxxxx and Xxxxx shall use reasonable
best efforts to develop a joint communications plan and each shall use
reasonable best efforts (i) to ensure that all press releases and other public
statements with respect to the transactions contemplated hereby 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 before
issuing any press release or, to the extent practical, otherwise making any
public statement with respect to this Agreement or the transactions contemplated
hereby. 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 6.1, neither Xxxxxxxx nor Tosco 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.
6.10 Listing of Shares of Xxxxxxxx Common Stock. Xxxxxxxx shall use
its reasonable best efforts to cause the shares of Xxxxxxxx Common Stock to be
issued in the Merger and the shares of Xxxxxxxx Common Stock to be reserved for
issuance upon exercise of the Tosco Stock Options to be approved for listing on
the NYSE, subject to official notice of issuance, prior to the Closing Date.
6.11 Rights Agreements. (a) The Board of Directors of Xxxxxxxx
shall take all action to the extent necessary (including amending the Xxxxxxxx
Rights Agreement) in order to
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render the Xxxxxxxx Rights inapplicable to the Merger and the other transactions
contemplated by this Agreement.
(b) The Board of Directors of Tosco shall take all action to the
extent necessary (including amending the Tosco Rights Agreement) in order to
render the Tosco Rights inapplicable to the Merger and the other transactions
contemplated by this Agreement. Except in connection with the foregoing
sentence, the Board of Directors of Tosco shall not, without the prior written
consent of Xxxxxxxx, (i) amend the Tosco Rights Agreement or (ii) take any
action with respect to, or make any determination under, the Tosco Rights
Agreement, including a redemption of the Tosco Rights, in each case in order to
facilitate any Acquisition Proposal with respect to Tosco.
6.12 Affiliates. Not less than 45 days prior to the date of the
Tosco Stockholders Meeting, Tosco shall deliver to Xxxxxxxx a letter identifying
all persons who, in the judgment of Tosco, may be deemed at the time this
Agreement is submitted for adoption by the stockholders of Tosco, "affiliates"
of Tosco for purposes of Rule 145 under the Securities Act and applicable SEC
rules and regulations, and such list shall be updated as necessary to reflect
changes from the date thereof. Tosco shall use reasonable best efforts to cause
each person identified on such list to deliver to Xxxxxxxx not later than ten
days prior to the Effective Time, a written agreement substantially in the form
attached as Exhibit A hereto (an "Affiliate Agreement").
6.13 Section 16 Matters. Prior to the Effective Time, Xxxxxxxx and
Tosco shall take all such steps as may be required to cause any dispositions of
Tosco Common Stock (including derivative securities with respect to Tosco Common
Stock) or acquisitions of Xxxxxxxx Common Stock (including derivative securities
with respect to Xxxxxxxx Common Stock) resulting from the transactions
contemplated by Article II or Article III of this Agreement by each individual
who is subject to the reporting requirements of Section 16(a) of the Exchange
Act with respect to Tosco or will become subject to such reporting requirements
with respect to Xxxxxxxx, to be exempt under Rule 16b-3 promulgated under the
Exchange Act.
6.14 Xxxxxxxx Indebtedness and Tosco Indebtedness. With respect to
Tosco Indebtedness issued under indentures qualified under the Trust Indenture
Act of 1939, and any other Tosco Indebtedness the terms of which require
Xxxxxxxx to assume such debt in order to avoid default thereunder (collectively,
the "Assumed Indentures"), Xxxxxxxx shall execute and deliver to the trustees or
other representatives in accordance with the terms of the respective Assumed
Indentures, supplemental indentures or other instruments, in form satisfactory
to the respective trustees or other representatives, expressly assuming the
obligations of Tosco with respect to the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on, and conversion
obligations under, all debt securities issued by Tosco under the Assumed
Indentures and the due and punctual performance of all the terms, covenants and
conditions of the Assumed Indentures to be kept or performed by Tosco and shall
deliver such supplemental indentures or other instruments to the respective
trustees or other representatives under the Assumed Indentures.
6.15 Accountants' Letter. Tosco shall use its reasonable best
efforts to cause to be delivered to Xxxxxxxx a letter from its independent
public accountants addressed to Xxxxxxxx,
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dated a date within two Business Days before the date on which the Form S-4
shall become effective, in form and substance reasonably satisfactory to
Xxxxxxxx and customary in scope and substance for letters delivered by
independent public accountants in connection with registration statements
similar to the Form S-4.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of Tosco and Xxxxxxxx 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) Tosco shall have obtained the Tosco
Stockholder Approval and (ii) Xxxxxxxx shall have obtained the Xxxxxxxx
Stockholder Approval.
(b) No Injunctions or Restraints; Illegality. No law shall have been
adopted or promulgated, and no temporary restraining order, preliminary or
permanent injunction or other order 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; Other Approvals. (i) The waiting period (and any
extension thereof) applicable to the Merger under the HSR Act shall have been
terminated or shall have expired, and (ii) all Other Approvals shall have been
obtained, except those Other Approvals the failure of which to obtain would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on Xxxxxxxx or Xxxxx.
(d) NYSE Listing. The shares of Xxxxxxxx Common Stock to be issued
in the Merger and such other shares of Xxxxxxxx Common Stock 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.
(e) Effectiveness of the Form S-4. The Form S-4 shall have been
declared effective by the SEC under the Securities Act and 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.
7.2 Additional Conditions to Obligations of Xxxxxxxx. The
obligations of Xxxxxxxx to effect the Merger are subject to the satisfaction, or
waiver by Xxxxxxxx, on or prior to the Closing Date, of the following
conditions:
(a) Representations and Warranties. Each of the representations and
warranties of Tosco set forth in this Agreement, disregarding all qualifications
and exceptions contained therein relating to materiality or Material Adverse
Effect, shall be true and correct 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
that such representations and warranties speak as of another date, in which case
such representations and warranties shall be true and correct as of such other
date),
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except where the failure of such representations and warranties to be true and
correct would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on Tosco; and Xxxxxxxx shall have received a
certificate of an executive officer of Tosco to such effect.
(b) Performance of Obligations of Tosco. Tosco shall have performed
or complied with all agreements and covenants required to be performed by it
under this Agreement at or prior to the Closing Date that are qualified as to
materiality or Material Adverse Effect and shall have performed or complied in
all material respects with all other material agreements and covenants required
to be performed by it under this Agreement at or prior to the Closing Date that
are not so qualified; and Xxxxxxxx shall have received a certificate of an
executive officer of Tosco to such effect.
(c) Tax Opinion. Xxxxxxxx shall have received from Wachtell, Lipton,
Xxxxx & Xxxx, counsel to Xxxxxxxx, a written opinion dated the Closing Date to
the effect that for federal income tax purposes the Merger will constitute a
"reorganization" within the meaning of Section 368(a) of the Code. In rendering
such opinion, counsel to Xxxxxxxx shall be entitled to rely upon customary
assumptions and representations reasonably satisfactory to such counsel,
including representations set forth in certificates of officers of Xxxxxxxx and
Tosco.
7.3 Additional Conditions to Obligations of Tosco. The obligations
of Tosco to effect the Merger are subject to the satisfaction, or waiver by
Tosco, on or prior to the Closing Date, of the following additional conditions:
(a) Representations and Warranties. Each of the representations and
warranties of Xxxxxxxx set forth in this Agreement, disregarding all
qualifications and exceptions contained therein relating to materiality or
Material Adverse Effect, shall be true and correct 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 that such representations and warranties speak as of
another date, in which case such representations and warranties shall be true
and correct as of such other date), except where the failure of such
representations and warranties to be true and correct would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
Xxxxxxxx; and Tosco shall have received a certificate of an executive officer of
Xxxxxxxx to such effect.
(b) Performance of Obligations of Xxxxxxxx. Xxxxxxxx shall have
performed or complied with all agreements and covenants required to be performed
by it under this Agreement at or prior to the Closing Date that are qualified as
to materiality or Material Adverse Effect and shall have performed or complied
in all material respects with all other material agreements and covenants
required to be performed by it under this Agreement at or prior to the Closing
Date that are not so qualified; and Tosco shall have received a certificate of
an executive officer of Xxxxxxxx to such effect.
(c) Tax Opinion. Tosco shall have received from Stroock & Stroock &
Xxxxx LLP, counsel to Tosco, a written opinion dated the Closing Date to the
effect that for federal income tax purposes the Merger will constitute a
"reorganization" within the meaning of Section 368(a) of the Code. In rendering
such opinion, counsel to Tosco shall be entitled to rely upon
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customary assumptions and representations reasonably satisfactory to such
counsel, including representations set forth in certificates of officers of
Xxxxxxxx and Xxxxx.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 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 specifically provided below,
whether before or after the Xxxxxxxx Stockholders Meeting or the Tosco
Stockholders Meeting:
(a) By mutual written consent of Xxxxxxxx and Xxxxx;
(b) By either Xxxxxxxx or Tosco, if the Effective Time shall not
have occurred on or before the date one year from the date of this Agreement
(the "Termination Date"); provided, however, that the right to terminate this
Agreement under this Section 8.1(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement (including such party's
obligations set forth in Section 6.4) has been the primary cause of, or resulted
in, the failure of the Effective Time to occur on or before the Termination
Date;
(c) By either Xxxxxxxx or Xxxxx, if any Governmental Entity (i)
shall have issued an order, decree or ruling or taken any other action (which
the parties shall have used their reasonable best efforts to resist, resolve or
lift, as applicable, in accordance with Section 6.4) permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, and such order, decree, ruling or other action shall have become
final and nonappealable or (ii) shall have failed to issue an order, decree or
ruling or to take any other action which is necessary to fulfill the conditions
set forth in Sections 7.1(c), (d) or (e), as applicable, and such denial of a
request to issue such order, decree, ruling or the failure to take such other
action shall have become final and nonappealable (which order, decree, ruling or
other action the parties shall have used their reasonable best efforts to
obtain, in accordance with Section 6.4); provided, however, that the right to
terminate this Agreement under this Section 8.1(c) shall not be available to any
party whose failure to comply with Section 6.4 has been the primary cause of
such action or inaction;
(d) By either Xxxxxxxx or Tosco, if either the Xxxxxxxx Stockholder
Approval or the Tosco Stockholder Approval has not been obtained by reason of
the failure to obtain the required vote at the Xxxxxxxx Stockholders Meeting or
the Tosco Stockholders Meeting, as applicable;
(e) By Xxxxxxxx, if Xxxxx shall have (i) failed to make the Tosco
Recommendation or effected a Change in the Tosco Recommendation (or resolved to
take any such action), whether or not permitted by the terms hereof, or (ii)
materially breached its obligations under this Agreement by reason of a failure
to call the Tosco Stockholders Meeting in accordance with Section 6.1(b) or a
failure to prepare and mail to its stockholders the Joint Proxy
Statement/Prospectus in accordance with Section 6.1(a);
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(f) By Tosco, if Xxxxxxxx shall have (i) failed to make the Xxxxxxxx
Recommendation or effected a Change in the Xxxxxxxx Recommendation (or resolved
to take any such action), whether or not permitted by the terms hereof, or (ii)
materially breached its obligations under this Agreement by reason of a failure
to call the Xxxxxxxx Stockholders Meeting in accordance with Section 6.1(c) or a
failure to prepare and mail to its stockholders the Joint Proxy
Statement/Prospectus in accordance with Section 6.1(a);
(g) By Xxxxxxxx, if Xxxxx shall have breached or failed to perform
any of its representations, warranties, covenants or other agreements contained
in this Agreement, such that the conditions set forth in Section 7.2(a) or (b)
are not capable of being satisfied on or before the Termination Date; or
(h) By Tosco, if Xxxxxxxx shall have breached or failed to perform
any of its representations, warranties, covenants or other agreements contained
in this Agreement, such that the conditions set forth in Section 7.3(a) or (b)
are not capable of being satisfied on or before the Termination Date.
(i) By Tosco, if the Board of Directors of Tosco has provided
written notice to Xxxxxxxx that Xxxxx intends to enter into a binding written
agreement for a Superior Proposal (with such termination becoming effective upon
Tosco entering into such binding written agreement); provided, however, that (i)
Tosco shall have complied with Section 6.5 hereof in all material respects; (ii)
Tosco shall have (A) notified Xxxxxxxx in writing of its receipt of such
Superior Proposal, (B) further notified Xxxxxxxx in such writing that Tosco
intends to enter into a binding agreement with respect to such Superior Proposal
subject to clause (iii) below and (C) attached the most current written version
of such Superior Proposal (or a summary containing all material terms and
conditions of such Superior Proposal) to such notice, (iii) Xxxxxxxx does not
make, within three calendar days after receipt of Tosco's written notice
pursuant to clause (ii) above, an offer that the Board of Directors of Tosco
shall have reasonably concluded in good faith (following consultation with its
financial advisor and outside counsel) is as favorable to the stockholders of
Tosco as such Superior Proposal and (iv) Tosco pays the Tosco Termination Fee in
accordance with Section 8.2(d) concurrently with entering into such binding
written agreement.
(j) By Xxxxxxxx, if the Board of Directors of Xxxxxxxx has provided
written notice to Tosco that Xxxxxxxx intends to enter into a binding written
agreement for a Superior Proposal (with such termination becoming effective upon
Xxxxxxxx entering into such binding written agreement); provided, however, that
(i) Xxxxxxxx shall have complied with Section 6.5 hereof in all material
respects; (ii) Xxxxxxxx shall have (A) notified Tosco in writing of its receipt
of such Superior Proposal, (B) further notified Tosco in such writing that
Xxxxxxxx intends to enter into a binding agreement with respect to such Superior
Proposal subject to clause (iii) below and (C) attached the most current written
version of such Superior Proposal (or a summary containing all material terms
and conditions of such Superior Proposal) to such notice; (iii) Tosco does not
make, within three calendar days after receipt of Xxxxxxxx'x written notice
pursuant to clause (ii) above, an offer that the Board of Directors of Xxxxxxxx
shall have reasonably concluded in good faith (following consultation with its
financial advisor and outside counsel) is as favorable to the stockholders of
Xxxxxxxx as such Superior Proposal and (iv) Xxxxxxxx pays the Xxxxxxxx
Termination Fee in accordance with Section 8.2(e) concurrently with entering
into such binding written agreement.
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8.2 Effect of Termination. (a) In the event of termination of this
Agreement by either Tosco or Xxxxxxxx as provided in Section 8.1, this Agreement
shall forthwith become void and there shall be no liability or obligation on the
part of any party to this Agreement or their respective officers or directors
except with respect to Section 4.1(q), Section 4.2(o), the second sentence of
Section 6.3, Section 6.6, this Section 8.2 and Article IX, which provisions
shall survive such termination; provided that, notwithstanding anything to the
contrary contained in this Agreement, neither Xxxxxxxx nor Tosco shall be
relieved or released from any liabilities or damages arising out of its willful
and material breach of this Agreement.
(b) If (A) (I) (x) either Tosco or Xxxxxxxx terminates this
Agreement pursuant to Section 8.1(d) (provided that the basis for such
termination is the failure to obtain the Tosco Stockholder Approval) or pursuant
to Section 8.1(b) without the Tosco Stockholders Meeting having occurred or (y)
Xxxxxxxx terminates this Agreement pursuant to Section 8.1(g), (II) at any time
after the date of this Agreement and before such termination an Acquisition
Proposal with respect to Tosco shall have been publicly announced or otherwise
communicated to the senior management, Board of Directors or stockholders of
Tosco and (III) within twelve months of such termination Tosco or any of its
Subsidiaries enters into any definitive agreement with respect to, or
consummates, any Acquisition Proposal or (B) Xxxxxxxx shall terminate this
Agreement pursuant to Section 8.1(e), then Tosco shall promptly, but in no event
later than one Business Day after the date of such termination (or in the case
of clause (A), if later, the date Tosco or its Subsidiary enters into such
agreement with respect to or consummates such Acquisition Proposal), pay
Xxxxxxxx an amount equal to the Tosco Termination Fee, by wire transfer of
immediately available funds.
(c) If (A) (I) (x) either Tosco or Xxxxxxxx terminates this
Agreement pursuant to Section 8.1(d) (provided that the basis for such
termination is the failure to obtain the Xxxxxxxx Stockholder Approval) or
pursuant to Section 8.1(b) without the Xxxxxxxx Stockholders Meeting having
occurred or (y) Tosco terminates this Agreement pursuant to Section 8.1(h), (II)
at any time after the date of this Agreement and before such termination an
Acquisition Proposal with respect to Xxxxxxxx shall have been publicly announced
or otherwise communicated to the senior management, Board of Directors or
stockholders of Xxxxxxxx and (III) within twelve months of such termination
Xxxxxxxx or any of its Subsidiaries enters into any definitive agreement with
respect to, or consummates, any Acquisition Proposal or (B) Tosco shall
terminate this Agreement pursuant to Section 8.1(f), then Xxxxxxxx shall
promptly, but in no event later than one Business Day after the date of such
termination (or in the case of clause (A), if later, the date Xxxxxxxx or its
Subsidiary enters into such agreement with respect to or consummates such
Acquisition Proposal), pay Tosco an amount equal to the Xxxxxxxx Termination
Fee, by wire transfer of immediately available funds.
(d) If Tosco terminates this Agreement pursuant to Section 8.1(i),
Tosco shall pay Xxxxxxxx an amount equal to the Xxxxxxxx Termination Fee, by
wire transfer of immediately available funds, concurrently with entering into
the binding written agreement for a Superior Proposal.
(e) If Xxxxxxxx terminates this Agreement pursuant to Section
8.1(j), Xxxxxxxx shall pay Tosco an amount equal to the Tosco Termination Fee,
by wire transfer of immediately
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available funds, concurrently with entering into the binding written agreement
for a Superior Proposal.
(f) The parties hereto acknowledge that the agreements contained in
this Section 8.2 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, neither party would enter into
this Agreement; accordingly, if either party fails promptly to pay any amount
due pursuant to this Section 8.2, and, in order to obtain such payment, the
other party commences a suit which results in a judgment against such party for
the fee set forth in this Section 8.2, such party shall pay to the other party
its costs and expenses (including attorneys' fees and expenses) in connection
with such suit, together with interest on the amount of the fee at the prime
rate of Citibank, N.A. in effect on the date such payment was required to be
made, notwithstanding the provisions of Section 6.6. The parties hereto agree
that any remedy or amount payable pursuant to this Section 8.2 shall not
preclude any other remedy or amount payable hereunder, and shall not be an
exclusive remedy, for any willful and material breach of any representation,
warranty, covenant or agreement contained in this Agreement.
8.3 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 the Xxxxxxxx Stockholder Approval or the Tosco Stockholder
Approval, 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.
8.4 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 IX
GENERAL PROVISIONS
9.1 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, agreements and other provisions, shall survive the Effective Time,
except for those covenants, agreements and other provisions contained herein
that by their terms apply or are to be performed in whole or in part after the
Effective Time and this Article IX.
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9.2 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 facsimile, upon verbal 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 fifth 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:
(i) if to Xxxxxxxx to:
Xxxxxxxx Petroleum Company
Xxxxxxxx Building
Fourth & Xxxxxx
Bartlesville, Oklahoma 74004
Attention: General Counsel
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
(ii) if to Tosco to:
Tosco Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
9.3 Interpretation. When a reference is made in this Agreement to
Articles, Sections, Exhibits or Schedules, such reference shall be to an Article
or 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
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"without limitation." In addition, each Section of this Agreement is qualified
by the matters set forth with respect to such Section on the Xxxxxxxx Disclosure
Schedule, the Tosco Disclosure Schedule and the other Schedules to this
Agreement, and such other Sections of this Agreement to the extent that the
matter in such Section of such Schedule is disclosed in such a way as to make
its relevance called for by such other Section of this Agreement readily
apparent.
9.4 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.
9.5 Entire Agreement; No Third Party Beneficiaries. (a) This
Agreement, the Confidentiality Agreement and the exhibits and schedules hereto
and the other agreements and instruments of the parties delivered in connection
herewith 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 6.7 (which is intended to be for the benefit of the Persons covered
thereby).
9.6 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
9.7 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.
9.8 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.
9.9 Submission to Jurisdiction; Waivers. Each of Xxxxxxxx and Xxxxx
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
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or its successors or assigns may be brought and determined in the Chancery or
other Courts of the State of Delaware, and each of Xxxxxxxx and Tosco 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 Xxxxxxxx and Xxxxx 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), (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 and (d) any right to a trial by
jury.
9.10 Enforcement. The parties hereto 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 hereto 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.
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IN WITNESS WHEREOF, Xxxxxxxx, Merger Sub and Tosco have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXXXXXX PETROLEUM COMPANY
By: /s/ X. X. Xxxxx
-----------------------------------
Name:
Title:
PING ACQUISITION CORP.
By: /s/ X. X. Xxxxxxxxx
-----------------------------------
Name:
Title:
TOSCO CORPORATION
By: /s/ Xxxxxx X. X'Xxxxxx
-----------------------------------
Name:
Title:
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