SECONDED AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
between
XXXXX USA, INC.
and
OCCIDENTAL C.O.B. PARTNERS
Dated as of November 3, 1997
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms........................................ 1
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board..................................... 6
SECTION 2.02. Removal...................................................... 6
SECTION 2.03. Vacancies.................................................... 7
ARTICLE III
TRANSFER OF SHARES
SECTION 3.01. General Restriction.......................................... 7
SECTION 3.02. Legends...................................................... 7
SECTION 3.03. Certain Restrictions on Transfer............................. 8
SECTION 3.04. Right of First Refusal....................................... 9
SECTION 3.05. Transferees to Execute Agreement............................. 11
SECTION 3.06. [RESERVED]
SECTION 3.07. [RESERVED]
SECTION 3.08. Improper Sale or Encumbrance................................. 12
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. Registration Rights.......................................... 12
SECTION 4.02. Incidental Registration...................................... 14
SECTION 4.03. Registration Procedures...................................... 15
SECTION 4.04. Preparation, Reasonable Investigation........................ 18
SECTION 4.05. Indemnification.............................................. 19
SECTION 4.06. Contribution................................................. 21
SECTION 4.07. Certain Information........................................ 23
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
SECTION 5.01. Representations and Warranties of Each Party............... 23
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices.................................................... 24
SECTION 6.02. Public Announcements....................................... 25
SECTION 6.03. Headings................................................... 25
SECTION 6.04. Severability............................................... 25
SECTION 6.05. Entire Agreement........................................... 25
SECTION 6.06. Assignment................................................. 26
SECTION 6.07. Parties in Interest........................................ 26
SECTION 6.08. Amendment.................................................. 26
SECTION 6.09. Governing Law.............................................. 26
SECTION 6.10. Counterparts............................................... 26
SECTION 6.11. Specific Performance....................................... 26
SECTION 6.12. Termination................................................ 27
SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated as of November
3, 1997 (this "Agreement"), between XXXXX USA, INC., a Delaware corporation (the
"Company"), and OCCIDENTAL C.O.B. PARTNERS, a Delaware general partnership ("Oxy
Partners" and, together with the Company, the "Parties").
WHEREAS, the Company and Oxy Partners have entered into a Stockholders'
Agreement dated as of December 1, 1995;
WHEREAS, the Company and Oxy Partners have entered into an Amended and
Restated Stockholders' Agreement dated as of October 1, 1997 (the "First Amended
and Restated Stockholders' Agreement");
WHEREAS, the Company and Oxy Partners desire to amend and restate the First
Amended and Restated Stockholders' Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Accepting Party" has the meaning specified in Section 3.04(b).
"affiliate" of a specified Person means a Person who, directly or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such specified Person.
"Agreement" means this Second Amended and Restated Stockholders' Agreement.
"beneficial owner" or "beneficially own" has the meaning given such term in
Rule 13d-3 under the Exchange Act as in effect on the date hereof; provided that
beneficial ownership under Rule 13d-3(1)(i) shall be determined based on whether
a Person has a right to acquire beneficial ownership within 60 days or
thereafter.
"Board" means the Board of Directors of the Company.
"Business Day" means any day that is not a Saturday, a Sunday or other day
on which
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banks are required or authorized by law to be closed in the City of New York.
"Capital Stock" means, with respect to any Person at any time, any and all
shares, interests, participation or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited) or equivalent ownership interests in or issued by such
Person and any and all warrants, options or other rights to purchase or acquire
any of the foregoing.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof, (b)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having the highest rating obtainable from any of Standard &
Poor's Corporation, Xxxxx'x Investors Service, Inc. or Duff & Xxxxxx Credit
Rating Co. or (c) commercial paper maturing not more than one year from the date
of issuance thereof and, at the time of acquisition, having the highest rating
obtainable from either Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc.
"Cause" has the meaning specified in Section 2.02(c).
"Xxxxx Capital Stock" means the Common Stock, Class A Common Stock, Class D
Common Stock, Class E Common Stock, Class F Common Stock and Preferred Stock.
"Class A Common Stock" means the Class A Common Stock, par value $.01 per
share, of the Company.
"Class D Common Stock" means the Class D Common Stock, par value $.01 per
share, of the Company.
"Class E Common Stock" means the Class E Common Stock, par value $.01 per
share, of the Company.
"Class F Common Stock" means the Class F Common Stock, par value $.01 per
share, of the Company.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Company.
"Company" means Xxxxx USA, Inc., a Delaware corporation.
"control" (including the terms "controlled by" and "under common control
with"), with
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respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly or as trustee or executor, of the power to
direct or cause the direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee or executor, by contract
or otherwise.
"Director" means a member of the Board.
"Encumbrance" means any security interest, lien, claim, pledge, limitation
on voting rights, charge or other encumbrance of any nature whatsoever.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fully Diluted Shares" as of any date means the aggregate of (i) the number
of Shares issued and outstanding as of such date (other than Shares held in the
treasury of the Company or held by any Subsidiary of the Company) and (ii) the
number of Shares issuable as of such date upon (x) the exercise of any then
exercisable outstanding options, warrants or similar instruments (other than any
such instruments held by the Company or any Subsidiary of the Company) and (y)
the exercise of any then exercisable conversion or exchange rights (other than
any such rights held by the Company or any Subsidiary of the Company).
"Governmental Entity" means any administrative, governmental or regulatory
authority or body or any court or tribunal, domestic or foreign.
"Laws" means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, judgment or decree.
"Marketable Securities" means securities that are (a) (i) securities of or
other interests in any Person that are traded on a national securities exchange,
reported on by NASDAQ or otherwise actively traded over-the-counter or (ii) debt
securities of a Person that has debt or equity securities that are so traded or
so reported on and in which a nationally recognized securities firm has agreed
to make a market, and (b) not subject to restrictions on transfer as a result of
any applicable contractual provisions or the provisions of the Securities Act or
any other applicable Law.
"Minimum Sale Price" has the meaning specified in Section 3.04(d).
"NASDAQ" means the National Association of Securities Dealers, Inc.
National Market System.
"Nominee" has the meaning specified in Section 2.03(a).
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"Notice of Acceptance" has the meaning specified in Section 3.04(b).
"Offer" has the meaning specified in Section 3.04(a).
"Offer Notice" has the meaning specified in Section 3.04(a).
"Offer Notice Date" has the meaning specified in Section 3.04(b).
"Offer Period" has the meaning specified in Section 3.04(b).
"Offer Price" has the meaning specified in Section 3.04(a).
"Offered Shares" has the meaning specified in Section 3.04(a).
"Other Stockholders" means all of the stockholders of the Company, except
for Oxy Partners, who shall agree to be bound by Article II hereof.
"Oxy Director" has the meaning specified in Section 2.01.
"Oxy Partners" means Occidental C.O.B. Partners, a Delaware general
partnership
"Oxy Shares" means the Shares owned from time to time by Oxy Partners and
any Person to whom any of such shares are transferred from time to time.
"Oxy Sub" means Occidental C.O.B. Co., Inc., a Delaware corporation.
"Parties" means the Company and Oxy Partners.
"Permitted Assignees" has the meaning specified in Section 3.04(b).
"Permitted Transferee" means (a) the Company or any Subsidiary of the
Company, (b) Oxy Partners or (c) any affiliate of Oxy Partners; provided,
however, that any such affiliate shall cease to be a Permitted Transferee in the
event it shall cease to be an affiliate of Oxy Partners.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Preferred Stock" means the preferred stock, par value $0.01 per share, of
the Company.
"Prospective Seller" has the meaning specified in Section 3.04(a).
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"Prospective Transferee" has the meaning specified in Section 3.05(a).
"Public Offering" means an underwritten public offering of equity
securities of the Company pursuant to a registration statement that has been
declared effective by the SEC under the Securities Act, in which such equity
securities are widely distributed and after which such equity securities are
traded on a national securities exchange or reported on by NASDAQ.
"Recapitalization" means any stock split, dividend or combination, or any
recapitalization, merger, consolidation, exchange or other similar
reorganization.
"Restricted Shares" means all Shares other than (a) Shares that have been
registered under a registration statement pursuant to the Securities Act, (b)
Shares with respect to which a Sale has been made in reliance on and in
accordance with Rule 144 and (c) Shares with respect to which the holder thereof
shall have delivered to the Company either (i) an opinion, in form and substance
reasonably satisfactory to the Company, of counsel, who shall be reasonably
satisfactory to the Company, or (ii) a "no action" letter from the staff of the
SEC, to the effect that subsequent transfers of such Shares may be effected
without registration under the Securities Act or compliance with Rule 144.
"Rule 144" means Rule 144 (or any successor provision) under the Securities
Act.
"Rule 144 Transaction" means any Sale of Oxy Shares made in reliance upon
Rule 144 (as in effect on the date hereof) that complies with paragraphs (d),
(e), (f) and (g) thereof (as in effect on the date hereof); provided that, if,
at the time of such Sale, the seller would otherwise be entitled to rely upon
paragraph (k) of Rule 144 in connection with such Sale, the number of Oxy Shares
included in such Sale, together with all other Sales of Oxy Shares by such
seller and its affiliates within any three-month period that includes the date
of such Sale, shall not exceed 1,500,000 Oxy Shares.
"Sale" means any sale, assignment, transfer, distribution or other
disposition of Shares or of a participation therein, whether voluntarily or by
operation of law.
"SEC" means the Securities and Exchange Commission, and any successor
commission or agency having similar powers.
"Securities Act" means the Securities Act of 1933, as amended.
"Share" means any share of Xxxxx Capital Stock and any securities issued in
respect thereof, or in substitution therefor, in connection with any
Recapitalization.
"Stockholder" means each Person (other than the Company) who shall be a
party to this
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Agreement, whether in connection with the execution and delivery hereof as of
the date hereof, pursuant to Section 3.05, or otherwise (other than any Person
who is a signatory to this Agreement solely for purposes of being bound by
Article II), so long as such Person shall beneficially own any Shares or any
options, warrants or similar rights to acquire Shares.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, joint venture, association or other
entity controlled by such Person directly or indirectly through one or more
intermediaries.
"Third Party" means, with respect to any Stockholder, any other Person
other than a Permitted Transferee.
"Trading Day" has the meaning specified in Section 3.04(g).
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board. So long as Oxy Partners and its
affiliates own in the aggregate at least 10% of the Fully Diluted Shares, Oxy
Partners shall be entitled to designate one Director for election to the Board
(the "Oxy Director"). Each Other Stockholder then entitled to vote for the
election of Directors to the Board shall vote all voting Shares owned or held of
record by such Person at any meeting of stockholders of the Company, or execute
a written consent with respect to all such Shares owned or held of record by
such Person, in favor of the election of the Oxy Director as a Director. In the
event Oxy Partners and its affiliates shall at any time not own in the aggregate
at least 10% of the Fully Diluted Shares, Oxy Partners and such affiliates shall
cause the Oxy Director to tender his or her written resignation as a Director to
the Secretary of the Company as soon as practicable.
SECTION 2.02. Removal. (a) Upon the written request of Oxy Partners, each
Other Stockholder shall vote all of his, her or its voting Shares in favor of
the removal of the Oxy Director. Each of the Other Stockholders agrees that, if,
at any time, he, she or it is then entitled to vote for the removal of
Directors, he, she or it will not vote any of his, her or its voting Shares in
favor of the removal of the Oxy Director unless such removal shall be for Cause
(as defined below) or Oxy Partners shall have consented to or directed such
removal in writing.
(b) Upon the written request of an Other Stockholder that designated a
Director, each Stockholder shall vote all of his, her or its voting Shares in
favor of the removal of such Director. Each Stockholder agrees that, if, at any
time, he, she or it is then entitled to vote for the removal of Directors, he,
she or it will not vote any of his, her or its voting Shares in favor of the
removal
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of a Director designated by any of the Other Stockholders unless the Other
Stockholder that designated such Director to the Board shall have consented to
or directed such removal in writing.
(c) Removal for "Cause" shall mean removal of a Director because of such
Director's (a) willful and continued failure to substantially perform his or her
duties as a Director, (b) willful conduct which is significantly injurious to
the Company, monetarily or otherwise, (c) conviction for, or guilty plea to, a
felony or a crime involving moral turpitude or (d) abuse of illegal drugs or
other controlled substances or habitual intoxication.
SECTION 2.03. Vacancies. (a) If, as a result of death, disability,
retirement, resignation, removal (with or without Cause) or otherwise, there
shall exist or occur any vacancy on the Board due to the absence of a Director
who shall have been designated pursuant to Section 2.01, and the requirements of
Section 2.01 shall remain satisfied in all respects, (i) Oxy Partners may
designate, in a writing executed by Oxy Partners, another individual to fill
such vacancy and to serve as a Director (the "Nominee") and (ii) each Other
Stockholder then entitled to vote for the election of Directors shall vote his,
her or its voting Shares at any meeting of stockholders of the Company, or
execute a written consent with respect to all such Shares, as the case may be,
in favor of the election of the Nominee as a Director.
(b) If, as a result of death, disability, retirement, resignation, removal
(with or without Cause) or otherwise, there shall exist or occur any vacancy on
the Board due to the absence of a Director who shall have been designated by one
of the Other Stockholders, (i) the Other Stockholder who designated such
director may designate, in a writing executed by such Other Stockholder, a
Nominee and (ii) each Stockholder shall vote his, her or its voting Shares at
any meeting of stockholders of the Company, or execute a written consent with
respect to all such Shares, as the case may be, in favor of the election of the
Nominee as a Director.
ARTICLE III
TRANSFER OF SHARES
SECTION 3.01. General Restriction. No Stockholder shall, directly or
indirectly, make or solicit any Sale of, or create, incur, assume or suffer to
exist any Encumbrance with respect to, any Oxy Share beneficially owned by such
Stockholder, except in compliance with the Securities Act and the rules and
regulations thereunder and this Agreement.
SECTION 3.02. Legends. (a) The Company shall affix to each certificate
evidencing Oxy Shares issued to Stockholders a legend in substantially the
following form:
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"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF TRANSFER
OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS SUCH
TRANSFER IS MADE IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH ACT DOES NOT APPLY. THE SECURITIES
EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AS SET FORTH IN AN AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
DATED AS OF OCTOBER 1, 1997, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO
REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF
THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED
WITH."
(b) In the event that any Oxy Shares shall cease to be Restricted Shares,
the Company shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such Oxy Shares without the first paragraph
of the legend required by Section 3.02(a) endorsed thereon.
(c) In the event that any Oxy Shares shall cease to be subject to the
restrictions on transfer set forth in this Agreement as provided in Section
3.03(b), the Company shall, upon the written request of the holder thereof,
issue to such holder a new certificate evidencing such Oxy Shares without the
second paragraph of the legend required by Section 3.02(a) endorsed thereon.
SECTION 3.03. Certain Restrictions on Transfer. (a) Each Stockholder agrees
that it will not, directly or indirectly, make or solicit any Sale of, or
create, incur, assume or suffer to exist any Encumbrance (other than a pledge or
hypothecation of Oxy Shares to one or more bona fide financial institutions and
any foreclosure thereof, in each case subject to Section 3.05) with respect to,
any Oxy Share beneficially owned by such Stockholder other than (i) any Sale to
a Permitted Transferee, (ii) any Sale for cash, Cash Equivalents or Marketable
Securities that is made in compliance with the procedures, and subject to the
limitations, set forth in Section 3.04, (iii) any Sale pursuant to a Public
Offering or (iv) any Sale in a Rule 144 Transaction. Notwithstanding the
foregoing, except as otherwise expressly provided in this Agreement, all Sales
permitted by the foregoing clauses (i) and (ii) shall be subject to, and shall
not be made other than in compliance with, the provisions of Sections 3.01, 3.02
and 3.05.
(b) The restrictions on transfer set forth in this Agreement shall cease
to apply (i) as to any particular Oxy Shares at such time as such Oxy Shares are
sold pursuant to a Public Offering or a Rule 144 Transaction and (ii) upon the
termination of this Agreement.
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SECTION 3.04. Right of First Refusal. (a) If any Stockholder receives from
a Third Party dealing at arm's length a bona fide offer to purchase for cash,
Cash Equivalents or Marketable Securities (an "Offer") any of the Oxy Shares
owned or held by such Stockholder, and such Stockholder intends to sell such Oxy
Shares to such Third Party, such Stockholder (for purposes of this Section 3.04,
the "Prospective Seller") shall provide the Company written notice of such Offer
(an "Offer Notice"). The Offer Notice shall identify the Third Party making the
Offer, the number and class (or classes) of Oxy Shares with respect to which the
Prospective Seller has such an Offer (the "Offered Shares"), the price per
Offered Share at which a sale is proposed to be made, determined in accordance
with Section 3.04(g) ("Offer Price"), the form of consideration in which the
Offer Price is proposed to be paid, and all other material terms and conditions
of the Offer.
(b) The receipt of an Offer Notice by the Company from a Prospective
Seller (the date of such receipt being referred to herein as the "Offer Notice
Date") shall constitute an offer by such Prospective Seller to sell to the
Company and any assignee or assignees of the Company ("Permitted Assignees") the
Offered Shares at the Offer Price in cash. Such offer shall be irrevocable
during the Offer Period (as hereinafter defined). The Company and any Permitted
Assignees shall have the right to accept such offer as to any or all of the
Offered Shares by giving a written notice of acceptance (the "Notice of
Acceptance") to the Prospective Seller prior to the expiration of the Offer
Period (the Company or any Permitted Assignee so accepting such offer, an
"Accepting Party"); provided, however, that the Company and any Permitted
Assignees shall provide a single Notice of Acceptance to the Prospective Seller
and such Notice of Acceptance must accept the offer as to all of the Offered
Shares on the same terms and conditions as the Offer (other than as expressly
set forth herein). If the Company or any Permitted Assignee so accepts the
Prospective Seller's offer, such Person will purchase for cash from the
Prospective Seller, and the Prospective Seller will sell to such Accepting
Party, such number of Offered Shares as to which such Accepting Party shall have
accepted the Prospective Seller's offer (which must total, as to all Accepting
Parties, all of the Offered Shares). The price per Offered Share to be paid by
such Accepting Party shall be the Offer Price. The Notice of Acceptance shall
specify (i) each Accepting Party's acceptance of the Prospective Seller's offer
and (ii) the number of Offered Shares to be purchased by each Accepting Party.
"Offer Period" means (i) in the event the Third Party making the Offer is
engaged in the refining business, the twenty Business Day period commencing on
the date the Offer Notice is received by the Company, or (ii) in all other
cases, the ten Business Day period commencing on the date the Offer Notice is
received by the Company.
(c) The consummation of such purchases by and sales to the Accepting
Parties shall take place on such date, not later than 90 days after receipt of
the Offer Notice by the Company (or such longer period as may be specified in
the Offer Notice), as the Accepting Parties and the Prospective Seller shall
select. Upon the consummation of such purchase and sale, the Prospective Seller
shall (i) deliver to the Accepting Party certificates evidencing the Offered
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Shares purchased and sold duly endorsed in blank or accompanied by written
instruments of transfer in form satisfactory to such Accepting Party duly
executed by the Prospective Seller, and (ii) assign all its rights under this
Agreement with respect to the Offered Shares purchased and sold pursuant to an
instrument of assignment reasonably satisfactory to such Accepting Party.
(d) In the event that (i) the Company shall have received an Offer Notice
from a Prospective Seller but the Prospective Seller shall not have received
from the Company and its Permitted Assignees a Notice of Acceptance with respect
to all the Offered Shares prior to the expiration of the Offer Period or (ii) an
Accepting Party shall have given a Notice of Acceptance to the Prospective
Seller but such Accepting Party shall have failed to consummate, other than as a
result of the fault of the Prospective Seller, a purchase of the Offered Shares
with respect to which such Notice of Acceptance was given within 90 days after
receipt of the Offer Notice by the Company (or such longer period as may be
specified in the Offer Notice), such Prospective Seller shall have the right
thereafter to make a sale of the Offered Shares so long as all the Offered
Shares that are sold by the Prospective Seller (which number of Offered Shares
shall be not less than the number of Offered Shares specified in such Offer
Notice) are sold for cash, Cash Equivalents or Marketable Securities (i) within
180 days after the date of receipt of such Offer Notice by the Company, (ii) at
an amount not less than the Minimum Sale Price (as hereinafter defined) and
(iii) to the Third Party that made the Offer. "Minimum Sale Price" means (x) if
the Prospective Seller's right to sell the Offered Shares results from the event
described in clause (i) of the preceding sentence, (A) an amount equal to 97
percent of the Offer Price set forth in the Offer Notice if such sale is
consummated within 30 days after the expiration of the Offer Period or (B) an
amount equal to 95 percent of the Offer Price set forth in the Offer Notice if
such sale is consummated thereafter, or (y) if the Prospective Seller's right to
sell the Offered Shares results from the event described in clause (ii) of the
preceding sentence, an amount equal to 90 percent of the Offer Price set forth
in the Offer Notice.
(e) In the event (i) that the Company shall have received an Offer Notice
from a Prospective Seller, (ii) the Prospective Seller shall not have received a
Notice of Acceptance for all the Offered Shares prior to the expiration of the
Offer Period and (iii) such Prospective Seller shall not have sold the remaining
Offered Shares before the expiration of the 180-day period in accordance with
paragraph (d) above, then such Prospective Seller shall not give another Offer
Notice for a period of 120 days after the last day of such 180-day period.
(f) Anything in this Section 3.04 or in Section 3.03(a) to the contrary
notwithstanding, the provisions of this Section 3.04 shall not be applicable to
Sales of Xxxxx Capital Stock described in clauses (i), (iii) and (iv) of Section
3.03(a).
(g) For the purpose of determining the Offer Price with respect to an
Offer that contemplates the payment of consideration in the form of Cash
Equivalents or Marketable Securities, the value of such Cash Equivalents or
Marketable Securities shall be determined as
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set forth in this Section 3.04(g). The value of Cash Equivalents shall be the
fair market value of such Cash Equivalents as of the Offer Notice Date as
determined by a nationally recognized investment banking firm selected by the
Company and reasonably acceptable to the Prospective Seller. The value of
Marketable Securities shall be, if such securities are listed or admitted to
trading on a national securities exchange, the average of the last sale prices
for such securities during the twenty consecutive Trading Days preceding the
Offer Notice Date, as reported in the principal consolidated transaction
reporting system for securities listed on the principal national securities
exchange on which such securities are listed or admitted to trading or, if such
securities are not listed or admitted to trading on any national securities
exchange, the average during the twenty consecutive Trading Days preceding the
Offer Notice Date of the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use, or, if on any such date such shares are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in such
shares selected by a majority of the Directors. If no market maker is making a
market in such securities at such time, the fair value of such securities on the
Offer Notice Date shall be determined in good faith by a nationally recognized
investment banking firm selected by the Company and reasonably acceptable to the
Prospective Seller (the fees and expenses of which shall be paid one-half by the
Company and one-half by the Prospective Seller). If such securities are not
publicly held or not so listed or traded, the value of such securities shall
mean the fair value of such securities as of the Offer Notice Date as determined
in good faith by a nationally recognized investment banking firm selected by the
Company and reasonably acceptable to the Prospective Seller (the fees and
expenses of which shall be paid one-half by the Company and one-half by the
Prospective Seller), whose determination shall be conclusive for all purposes.
The term "Trading Day" shall mean, if such securities are listed or admitted to
trading on any national securities exchange, a day on which the principal
national securities exchange on which such shares are listed or admitted to
trading is open for the transaction of business or, if such shares are not so
listed or admitted, a Business Day.
SECTION 3.05. Transferees to Execute Agreement. (a) Each Stockholder agrees
that it will not, directly or indirectly, make any Sale of, or create, incur,
assume or suffer to exist any Encumbrance with respect to, any Oxy Shares
beneficially owned by such Stockholder unless, contemporaneously with or prior
to the consummation of any such Sale or the creation, incurrence, assumption or
existence of such Encumbrance, the Person to whom such Sale is proposed to be
made or the Person in whose favor such Encumbrance is proposed to be created,
incurred, assumed or suffered to exist, in any case, (a "Prospective
Transferee"), executes and delivers to the Company its written agreement, in
form and substance reasonably satisfactory to the Company, whereby such
Prospective Transferee (i) confirms that, with respect to the Oxy Shares that
are the subject of such Sale or Encumbrance, it shall be deemed to be a
Stockholder for purposes of this Agreement and agrees to be bound by all the
terms of this Agreement, and (ii) represents and warrants that, upon the
consummation of such Sale or the creation, incurrence,
12
assumption or existence of such Encumbrance, such agreement is a legal, valid
and binding obligation of such Prospective Transferee enforceable against such
Prospective Transferee in accordance with its terms, subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors' rights generally and subject, as to enforceability, to
the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Upon the
execution and delivery by such Prospective Transferee of the agreement referred
to in the preceding sentence, such Prospective Transferee shall be deemed a
Stockholder for purposes of this Agreement and shall have the rights and be
subject to the obligations of a Stockholder under this Agreement, in each case
with respect to the Oxy Shares beneficially owned by such Prospective Transferee
or in respect of which such Encumbrance shall have been created, incurred,
assumed or suffered to exist.
(b) Anything in this Section 3.05 or in Section 3.03 to the contrary
notwithstanding, the provisions of this Section 3.05 will not be applicable to
any Sale of Oxy Shares pursuant to a Public Offering or a Rule 144 Transaction.
SECTION 3.06. [RESERVED].
SECTION 3.07. [RESERVED].
SECTION 3.08. Improper Sale or Encumbrance. Any attempt not in compliance
with this Agreement to make any Sale of, or create, incur or assume any
Encumbrance with respect to, any Oxy Shares shall be null and void and of no
force and effect, the purported transferee shall have no rights or privileges in
or with respect to the Company, and the Company shall not give any effect in the
Company's stock records to such attempted Sale or Encumbrance.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. Registration Rights. (a) If the Company is a Public Company,
upon the written request of Oxy Partners or any Permitted Transferee of Oxy
Partners requesting that the Company effect the registration under the
Securities Act of all or part of the Oxy Shares held by such Person and
specifying the intended method of disposition thereof, the Company shall
promptly give written notice of such requested registration to all other holders
of Shares, and thereupon will, as expeditiously as possible, use its
commercially reasonable efforts to effect the registration under the Securities
Act of the Oxy Shares that the Company has been so requested to register by such
holder, provided that (i) the Company shall be obligated to register Oxy Shares
pursuant to this Section 4.01(a) on only one occasion, (ii) the Company shall
not be
13
obligated to file a registration statement relating to any registration request
under this Section 4.01(a) if with respect thereto the managing underwriter, the
SEC, the Securities Act or the rules and regulations thereunder, or the form on
which the registration statement is to be filed, would require the conduct of an
audit other than the regular audit conducted by the Company at the end of its
fiscal year, in which case the filing may be delayed until the completion of
such regular audit (unless the holders of the Oxy Shares to be registered agree
to pay the expenses of the Company in connection with such an audit other than
the regular audit); provided, however, that the work required to be performed to
enable the Company's auditors to issue their consent or a "cold comfort" letter
shall not be deemed to be an audit, and (iii) if the Company, in its sole
discretion, determines that the filing of a registration statement in the near
future pursuant to this Section 4.01 would interfere with any financing,
acquisition, corporate reorganization or other similar transaction involving the
Company or any Subsidiary of the Company or that such registration would require
disclosure of non-public information that the Company deems advisable not to
disclose, then the Company's obligation to file a registration statement shall
be deferred for a period not to exceed 180 days.
(b) If any registration requested pursuant to this Section 4.01 that is
proposed by the Company to be effected by the filing of a registration statement
on Form S-3 (or any successor or similar short-form registration statement)
shall be in connection with an underwritten public offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion, the use of
another form of registration statement is of material importance to the success
of such proposed offering, then such registration shall be effected on such
other form.
(c) A registration requested pursuant to this Section 4.01 shall not be
deemed to have been effected unless it has become effective and, even in that
event, such registration shall not be deemed to have been effected if within 180
days after it has become effective, the offering of Oxy Shares pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court (unless such stop
order, injunction or other order or requirement arises out of or in connection
with an action or failure to act or misstatement or omission by the Person
requesting such registration).
(d) If a requested registration pursuant to this Section 4.01 involves an
underwritten offering, Oxy Partners shall have the right to select the lead
underwriter or underwriters and managers to administer the offering, which shall
be nationally recognized investment banking firms reasonably satisfactory to the
Company, and the Company shall have the right to select a co-manager for the
offering.
(e) If a requested registration pursuant to this Section 4.01 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested to be included
in such registration (including securities issued or to be issued by the Company
that are not Oxy Shares) should be limited because the inclusion of
14
all of such securities is likely to adversely impact the purchase price obtained
for such securities, the Company shall include in such registration securities
in the following order of priority: first, Oxy Shares requested to be included
in such registration pursuant to this Section 4.01 and second, any other
securities of the Company.
(f) For purposes of this Agreement, the Company shall be deemed to be a
"Public Company" if, as of any date of determination, any Shares shall have been
sold in a Public Offering and any Shares are registered under the Exchange Act.
SECTION 4.02. Incidental Registration. If the Company at any time proposes
to register any Shares under the Securities Act for Sale in a Public Offering,
whether or not for its own account, on a form and in a manner that would permit
registration of Oxy Shares under the Securities Act for Sale in such Public
Offering, the Company shall give prompt written notice to all holders of Oxy
Shares of its intention to do so, specifying the form and manner and the other
relevant facts involved in such proposed registration (including, without
limitations the identity of the managing underwriter). Upon the written request
of any holder of Oxy Shares delivered to the Company within ten days after such
notice shall have been given to such holder (which request shall specify the
number of Oxy Shares intended to be disposed of by such holder and the intended
method of disposition thereof), the Company shall use its commercially
reasonable efforts to effect the registration under the Securities Act, as
expeditiously as is reasonable, of all Oxy Shares that the Company has been so
requested to register by the holders of Oxy Shares, to the extent requisite to
permit the Sale of the Oxy Shares to be so registered in such Public Offering;
provided, however, that:
(a) if, at any time after giving such written notice of its intention to
register any of such Shares proposed to be registered by the Company and prior
to the effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to register
such Shares, the Company may, at its election, give written notice of such
determination to each holder of Oxy Shares that has requested to register Oxy
Shares and thereupon the Company shall be relieved of its obligation to register
any Oxy Shares in connection with such registration;
(b) if the managing underwriter of such Public Offering shall advise the
Company that, in its judgment, the number of Shares proposed to be included in
such Public Offering should be limited because the inclusion of Oxy Shares is
likely to adversely impact the purchase price obtained for the Shares initially
proposed to be included in such Public Offering by the Company (whether or not
for its own account), then the Company shall promptly advise each holder of such
Oxy Shares thereof and may require, by written notice to each such holder
accompanying such advice, that, to the extent necessary to meet such limitation,
the number of Oxy Shares to be included in such registration shall be reduced,
and all holders of Oxy Shares proposing to sell Shares in such Public Offering
shall share pro rata in the number of Shares to be
15
excluded from such offering, such sharing to be based on the respective numbers
of Shares as to which they have requested registration; and
(c) the Company shall not be obligated to effect any registration of Oxy
Shares under this Section 4.02 that is incidental to the registration of any of
its Shares or other securities in connection with any merger, acquisition,
exchange offer, dividend reinvestment plan or stock option, stock purchase,
savings or other employee benefit plan.
SECTION 4.03. Registration Procedures. (a) If and whenever the Company
is required to use its commercially reasonable efforts to effect the
registration of any Oxy Shares as provided in Section 4.01 or 4.02, the Company
will as expeditiously as is reasonably practicable:
(i) prepare and file with the SEC on any appropriate form a registration
statement with respect to such Oxy Shares and use its commercially reasonable
efforts to cause such registration statement to become effective;
(ii) prepare and file with the SEC such amendments (including post-
effective amendments) and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act and the rules and regulations thereunder with respect to the
disposition of all Oxy Shares and other securities covered by such registration
statement until the earlier of (A) such time as all such Oxy Shares and other
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement and (B) the expiration of 180 days from the date such registration
statement first becomes effective (or such other period as may be agreed upon by
the Company and the managing underwriter);
(iii) furnish to each seller of such Oxy Shares such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements of
the Securities Act and the rules and regulations thereunder, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents, as such seller may reasonably request in order to facilitate
the sale or disposition of such Oxy Shares;
(iv) use its commercially reasonable efforts to register or qualify all Oxy
Shares covered by such registration statement under such other securities or
"blue sky" laws of such U.S. jurisdictions as each seller shall reasonably
request, and do any and all other acts and things that may be necessary to
enable such seller to consummate the disposition in such jurisdictions of its
Oxy Shares covered by such registration statement, except that the Company shall
not for any
16
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to subject
itself to taxation in respect of doing business in any such jurisdiction, or to
consent to general service of process in any such jurisdiction;
(v) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions in
favor of underwriters and other persons in addition to, or in substitution for
the provisions of Section 4.06, and take such other actions as sellers of a
majority of Oxy Shares or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Oxy Shares;
(vi) furnish to each seller of Oxy Shares (x) a signed counterpart,
addressed to such seller, of any opinion of counsel for the Company, dated the
date of the closing under the underwriting agreement with respect to such Public
Offering, and (y) a signed counterpart, if requested by such seller, managing
underwriter or other seller of securities included in such registration,
addressed to such seller, of any "cold comfort" letter signed by the independent
public accountants in customary form and covering matters of the type
customarily covered by "cold comfort" letters as the managing underwriter or
seller of such Oxy Shares shall reasonably request (provided that Oxy Shares
constitute at least 25% of the securities covered by such registration
statement, unless such a "cold comfort" letter or letters are provided to the
Company, managing underwriter or other selling holders in connection with such
registration);
(vii) immediately notify each seller of Oxy Shares covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act and the rules and regulations
thereunder, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing or if it is necessary to amend or
supplement such prospectus to comply with law, and at the request of any such
seller prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Oxy Shares or other securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and shall otherwise comply in all material respects with law and so
that such prospectus, as amended or supplemented, will comply with law;
(viii) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations thereunder;
17
(ix) use its commercially reasonable efforts to list such Oxy Shares on
each securities exchange or quotation system on which Shares are then listed or
quoted, if such Oxy Shares are not already so listed or quoted and if such
listing is then permitted under the rules of such exchange or quotation system,
and provide a transfer agent and registrar for such Oxy Shares not later than
the effective date of such registration statement;
(x) cooperate with the holders of Oxy Shares covered by the registration
statement and the managing underwriter or agent, if any, to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration statement,
and enable such securities to be in such denominations and registered in such
names as the managing underwriter or agent, if any, or such holders may request;
(xi) notify counsel for the holders of Oxy Shares included in such
registration statement and the managing underwriter or agent, immediately (i)
when the registration statement, or any post-effective amendment to the
registration statement, shall have become effective, or any supplement to the
prospectus or any amendment prospectus shall have been filed, (ii) of the
receipt of any comments from the SEC, (iii) of any request of the SEC to amend
the registration statement or amend or supplement the prospectus or for
additional information, and (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the registration statement for offering or
sale in any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes;
(xii) make every commercially reasonable effort to prevent the issuance
of any stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary prospectus and,
if any such order is issued, to obtain the withdrawal of any such order at the
earliest possible moment;
(xiii) if requested by the managing underwriter or agent or any holder of
Oxy Shares covered by the registration statement, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or agent or such holder reasonably requests to be included
therein, including, without limitation, with respect to the number of Oxy Shares
being sold by such holder to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other terms
of the underwritten offering of the Oxy Shares to be sold in such offering; and
make all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after being notified of the matters
incorporated in such prospectus supplement or posteffective amendment;
(xiv) cooperate with each seller of Oxy Shares and each underwriter or
agent participating in the disposition of such Oxy Shares and their respective
counsel in connection
18
with any filings required to be made with the National Association of Securities
Dealers, Inc.; and
(xv) issue to any underwriter to which any holder of Oxy Shares may sell
such Oxy Shares in connection with any such registration (and to any direct or
indirect transferee of any such underwriter) certificates evidencing Oxy Shares
without the legends described in Section 3.02(a).
The Company may require each seller of Oxy Shares as to which any registration
is being effected to furnish the Company with such information regarding such
seller and the distribution of such Oxy Shares as the Company may from time to
time reasonably request in writing in connection therewith.
(b) Each holder of Oxy Shares agrees, if so required by the managing
underwriters, not to effect any public sale or distribution (including any sale
pursuant to Rule 144) of Shares (other than as part of such Public Offering)
within 7 days prior to the anticipated effective date of the registration
statement with respect to such underwritten public offering or 180 days after
the effective date of such registration statement.
(c) The Company agrees, if so required by the managing underwriters in
connection with such Public Offering of Oxy Shares pursuant to Section 4.01 or
Section 4.02, not to effect any public sale or distribution of any of its equity
securities or securities convertible into or exchangeable or exercisable for any
of such equity securities within the seven days prior to the anticipated
effective date of the registration statement with respect to such Public
Offering or 180 days after the effective date of such registration statement,
except as part of such Public Offering or except in connection with a dividend
reinvestment plan, a stock option, stock purchase, savings or other employee
benefit plan, or an acquisition, merger or exchange offer.
SECTION 4.04. Preparation, Reasonable Investigation. In connection with
the preparation and filing of a registration statement pursuant to Section 4.01
or Section 4.02, the Company will give the holders of Oxy Shares on whose behalf
such Oxy Shares are to be so registered and their underwriters, if any, and
their respective counsel, accountants and other agents the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have issued a report on its financial
statements as shall be necessary, in the opinion of such holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
19
SECTION 4.05. Indemnification. (a) In the event of any registration of
Oxy Shares pursuant to Section 4.01 or Section 4.02, the Company shall indemnify
and hold harmless the seller of any Oxy Shares covered by such registration
statement, its directors and officers, general and limited partners (and
directors and officers thereof and, if such seller is a portfolio or investment
fund, its investment advisors), each other Person who participates as an
underwriter in the Public Offering of such Oxy Shares, each officer and director
of each such underwriter, and each other Person, if any, who controls such
seller or any such underwriter within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees and any and all
reasonable expenses incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim, and any and all amounts
paid in settlement of any such claim or litigation) to which such seller or any
such director or officer or participating or controlling Person may become
subject under the Securities Act, the Exchange Act, the rules and regulations
thereunder or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Oxy Shares were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, (ii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) any failure by the Company to comply with the requirements of the
Securities Act, the Exchange Act, any state securities laws or any rule or
regulation promulgated under any of the foregoing, and the Company will
reimburse such seller, and each such director, officer, underwriter and
controlling Person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon (i) an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company for use in the preparation thereof by such seller or underwriter, as the
case may be, or (ii) an untrue statement or alleged untrue statement or omission
or alleged omission made in any preliminary prospectus but notified to such
seller and underwriter prior to any sale of Oxy Shares and subsequently
corrected by the Company in any final prospectus, amendment or supplement made
available to such seller or underwriter but which final prospectus, amendment or
supplement was not used by such seller or underwriter in the sale of Oxy Shares
that gave rise to such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller or
any such director, officer, underwriter or controlling Person and shall survive
the transfer of such Oxy Shares by such seller.
20
(b) The Company may require, as a condition to including any Oxy Shares in
any registration statement filed pursuant to Section 4.01 or Section 4.02, that
the Company shall have received an undertaking satisfactory to it from (i) the
prospective seller of such Oxy Shares, to indemnify and hold harmless the
Company, each underwriter of such Shares, each officer and director of each such
underwriter and each other Person, if any, who controls the Company or any such
underwriter within the meaning of Section 15 of the Securities Act, and (ii)
each underwriter of such Oxy Shares, to indemnify and hold harmless the Company,
each officer and director of the Company, each prospective seller, each officer
and director of each prospective seller and each other Person, if any, who
controls the Company or any such prospective seller within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees and any and all reasonable expenses incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim, and any
and all amounts paid in settlement of any such claim or litigation) to which
such Person or any such director or officer or participating or controlling
Person may become subject under the Securities Act, the Exchange Act, the rules
and regulations thereunder or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which such Oxy Shares were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus included therein, or any
amendment or supplement thereto, or any document incorporated by reference
therein, in reliance upon and in conformity with written information furnished
to the Company for use in the preparation thereof by the party from whom
indemnification is sought hereunder, (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in reliance upon and in conformity with
written information furnished to the Company for use in the preparation thereof
by the party from whom indemnification is sought hereunder, or (iii) any failure
by the party from whom indemnification is sought to comply with the requirements
of the Securities Act, the Exchange Act, any state securities laws or any rule
or regulation promulgated under any of the foregoing and the indemnifying party
will reimburse each indemnified party, and each such director, officer,
underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling Person and shall
survive the transfer of such Oxy Shares by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding (including any governmental
investigation) involving a claim referred to in Section 4.05(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as
21
provided herein shall not relieve the indemnifying party of its obligations
under the preceding provisions of this Section 4.05, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim (in
which case, the indemnifying party shall not be liable for the fees and expenses
of more than one counsel for all sellers of Oxy Shares and more than one counsel
for the underwriters in connection with any one action or separate but similar
or related actions), the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that it may wish with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof. No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof, the giving by the claimant or plaintiff to such indemnified party
of a release, in form and substance reasonably satisfactory to such indemnified
party, from all liability in respect to such claim or litigation. No indemnified
party will consent to the entry of any judgment or enter into any settlement
with respect to such claim or litigation without the written consent of the
indemnifying party.
SECTION 4.06. Contribution. (a) If the indemnification provided for in
Section 4.05 is unavailable to the indemnified parties in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
and the Company shall contribute to the amounts paid or payable by such
indemnified parties as a result of such losses, claims, damages or liabilities
(i) as between the Company and the holders of Oxy Shares covered by a
registration statement, on the one hand, and the underwriters, on the other, in
such proportion as is appropriate to reflect the relative benefits received by
the Company and such holders, on the one hand, and the underwriters, on the
other, from the Public Offering of the Oxy Shares, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits but also the relative fault of the Company and such
holders, on the one hand, and of the underwriters, on the other, in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations, and (ii)
as between the Company, on the one hand, and each holder of Oxy Shares covered
by a registration statement, on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of each such holder in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and such
holders, on the one hand, and the underwriters, on the other, shall be deemed to
be in the same proportion as the total proceeds from the Public Offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and such holders bear to the total underwriting discounts and
22
commissions received by the underwriters. The relative fault of the Company and
such holders, on the one hand, and of the underwriters, on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and such holders
or by the underwriters. The relative fault of the Company, on the one hand, and
of each such holder, on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(b) The Company and the holders of Oxy Shares agree that it would not be
just and equitable if contribution pursuant to this Section 4.06 were determined
by pro rata allocation (even if the underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the next preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the next preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.06, no underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Oxy
Shares underwritten by it and distributed to the public were offered to the
public pursuant to such Public Offering exceeds the amount of any damages that
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no holder of Oxy
Shares shall be required to contribute any amount in excess of the amount by
which the total price at which the Oxy Shares of such holder were offered to the
public pursuant to such Public Offering exceeds the amount of any damages that
such holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each holder's obligation to
contribute pursuant to this Section 4.06 is several in the proportion that the
proceeds of the Public Offering received by such holder bears to the total
proceeds of the Public Offering received by all the holders of Oxy Shares and
not joint.
SECTION 4.07. Certain Information. In the event that and so long as the
Company shall be a Public Company, it shall file all reports and other
information required to be filed by Section 13 or 15(d) under the Exchange Act,
as the case may be, within the respective time periods prescribed thereby for
the filing of such reports and other information, as shall be necessary in order
that the conditions to the availability of Rule 144 in connection with any Sale
of Oxy Shares by a Stockholder shall be met.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
SECTION 5.01. Representations and Warranties of Each Party. Each Party
hereby makes the following representations and warranties to the other Parties:
(a) Organization and Qualification. Such entity is a corporation or a
general partnership duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) Authority. Such entity has all requisite corporate or partnership
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by such entity and the
consummation by it of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate or partnership action and
no other proceedings on the part of such entity are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by such entity
and, assuming the due authorization, execution and delivery by the other
parties thereto, constitutes a legal, valid and binding obligation of such
entity, enforceable against such entity in accordance with its terms.
(c) No Conflict; Required Filings and Consents. (i) The execution of
and delivery of this Agreement by such entity do not, and the performance
this Agreement by such entity will not, (A) conflict with or violate the
Certificate of Incorporation, By-Laws or similar organizational documents
of such entity, (B) conflict with or violate any Laws applicable to such
entity or by which any of its properties or assets is bound or (C) result
in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or
result in the creation of an Encumbrance on any of the properties or assets
of such entity pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which such entity is a party or by which such entity or any
of its properties is bound, except in any case for such conflicts,
violations, breaches, defaults or other effects which would not prevent or
materially delay the performance by such entity of its obligations
hereunder.
(ii) The execution and delivery of this Agreement by such entity do
not, and the performance of this Agreement by such entity will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 6.01):
(a) If to the Company:
Xxxxx USA, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxx, Executive Vice President, Corporate
Development and Chief Financial Officer
With copies to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(b) If to Oxy Partners:
c/o Occidental Petroleum Corporation
00000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Executive Vice President, Corporate Development
With a copy to:
Occidental Petroleum Corporation
25
00000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
SECTION 6.02. Public Announcements. The Parties shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and, except as may be required by Law or any
listing agreement with any securities exchange, shall not issue any such press
release or make any such public statement without the consent of the other
parties.
SECTION 6.03. Headings. The descriptive headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 6.04. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law
or public policy, all other conditions 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 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 to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
SECTION 6.05. Entire Agreement. This Agreement constitutes the entire
agreement among the Parties and supersedes all prior agreements and
undertakings, both written and oral, among the Parties, or any of them, with
respect to the subject matter hereof.
SECTION 6.06. Assignment. Except as otherwise provided herein, this
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective successors and permitted assigns; provided, however, that
this Agreement shall not inure to the benefit of any Prospective Transferee
unless such Prospective Transferee shall have complied with the terms of Section
3.05. No Stockholder may assign any of its rights hereunder to any Person other
than a transferee that has complied with the requirements of Section 3.05 in all
respects.
SECTION 6.07. Parties in Interest. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any Person other than the Parties
and their respective successors and assigns any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
26
SECTION 6.08. Amendment. (a) Any term of this Agreement may be amended and
the observance of any such term may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and Oxy Partners.
(b) No failure or delay by any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 6.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed entirely within that State. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in a New York state or federal court sitting in the City of
New York, and the Parties hereby irrevocably submit to the exclusive
jurisdiction of such courts in any such action or proceeding and irrevocably
waive the defense of an inconvenient forum to the maintenance of any such action
or proceeding.
SECTION 6.10. Counterparts. This Agreement may be executed (by original or
telecopied signature) in one or more counterparts, and by the different Parties
in separate counterparts, each of which when so executed shall be deemed to be
an original but all of which taken together shall constitute one and the same
agreement.
SECTION 6.11. Specific Performance. The Parties agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 6.12. Termination. This Agreement shall terminate on the tenth
anniversary of the date hereof. After the eighth anniversary hereof the Parties
shall use their commercially reasonable efforts to extend the terms of this
Agreement for an additional ten year period.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
XXXXX USA, INC.
By: _________________________
Name:
Title:
OCCIDENTAL C.O.B. PARTNERS
By OXY USA, Inc.,
its managing partner
By: _________________________
Name:
Title:
The undersigned hereby agrees to be bound by the provisions of Article II
hereof.
BCP/XXXXX HOLDINGS CORPORATION
By: _________________________
Name:
Title:
