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EXHIBIT 2.2
AGREEMENT
AGREEMENT, dated as of June ___, 1997 (this "Agreement"),
among XXXXXXXXX ENERGY, INC., a Delaware corporation ("PEC"), XXXXXXXXX
DRILLING COMPANY, a Delaware corporation ("PDC"), and XXXXXXXXXX FOUNDATION, a
Texas non- profit corporation (the "Foundation"), and XXXXX XXXXXXXXXX, TRUSTEE
under Agreement dated May ___, 1997 (the "Xxxxxxxxxx Charitable Remainder
Trust").
WITNESSETH:
WHEREAS, PEC, PDC and Xxx-Xxx Drilling Company, a Texas
corporation ("Xxx-Xxx"), have entered into an asset purchase agreement dated of
even date herewith ("Asset Purchase Agreement") for PDC to acquire (the "Asset
Purchase") the contract drilling operations of Xxx-Xxx consisting primarily of
21 drilling rigs and related drilling equipment and rolling stock
(collectively, the "Drilling Rigs, Equipment and Rolling Stock") and a shop and
yard located in Abilene, Texas;
WHEREAS, the Foundation and the Xxxxxxxxxx Charitable
Remainder Trust own ___________ shares and _____________ shares, respectively,
of the Class B common stock of Xxx-Xxx (the "Xxx-Xxx Class B Stock"), which
Xxx-Xxx Class B Stock is redeemable by Xxx-Xxx at the option of the holder of
the Xxx-Xxx Class B Stock for consideration consisting of undivided interests
in the Drilling Rigs;
WHEREAS, PDC desires to purchase all of the Xxx-Xxx Class B
Stock held by the Foundation and the Xxxxxxxxxx Charitable Remainder Trust and
then cause Xxx-Xxx to redeem such Xxx-Xxx Class B Stock so that PDC will
acquire a 100% interest in the Drilling Rigs at the time of Closing (as defined
in the Asset Purchase Agreement);
WHEREAS, PDC on the one hand, and each of the Foundation and
the Xxxxxxxxxx Charitable Remainder Trust on the other, desire to make certain
representations, warranties and agreements in connection with the purchase by
PDC and the sale by the Foundation and the Xxxxxxxxxx Charitable Remainder
Trust of such Xxx-Xxx Class B Stock.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties agree
as follows:
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ARTICLE I
THE STOCK PURCHASE
SECTION 1.1 The Purchase. Upon the terms and subject to the
conditions of this Agreement, at the Closing (as defined in Section 1.3 below)
provided herein, PDC shall purchase from the Foundation and the Xxxxxxxxxx
Charitable Remainder Trust, and the Foundation and the Xxxxxxxxxx Charitable
Remainder Trust shall sell to PDC, all of the right, title and interest of the
Foundation and the Xxxxxxxxxx Charitable Remainder Trust in and to the Xxx-Xxx
Class B Stock owned by them (the "Stock Purchase").
SECTION 1.2 Purchase Consideration. In consideration for the
sale of all of the right, title and interest of the Foundation and the
Xxxxxxxxxx Charitable Remainder Trust in their respective shares of Xxx-Xxx
Class B Stock, PDC agrees to deliver or pay the following consideration (the
"Purchase Consideration"): (a) deliver to the Foundation _________ shares of
common stock, par value $0.01 per share (the "PEC Common Stock"), of PEC; and
(b) deliver or pay to the Xxxxxxxxxx Charitable Remainder Trust __________
shares of PEC Common Stock (such __________ shares of PEC Common Stock issuable
to the Foundation and the Xxxxxxxxxx Charitable Remainder Trust sometimes being
referred to herein collectively as the "PEC Shares") and $_____________ in cash
(the "Cash").
SECTION 1.3 Closing. The Closing of the Stock Purchase (the
"Closing") shall take place in the offices of Xxx-Xxx in Abilene, Texas,
contemporaneously with the Closing (as defined in the Asset Purchase Agreement)
of the Asset Purchase.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PEC AND PDC
Each of PEC and PDC represents and warrants to the Foundation
and Xxxxxxxxxx Charitable Remainder Trust as follows:
SECTION 2.1 Organization, Standing and Power. Each of PEC
and PDC is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the requisite
corporate power and authority to carry on its business as now being conducted.
SECTION 2.2 Authority; Non-Contravention. Each of PEC and
PDC has all requisite power and authority to enter into this Agreement and to
consummate the Stock Purchase. The execution and delivery by each of PEC and
PDC of this Agreement and the consummation by each of PEC and PDC of the Stock
Purchase have been duly authorized by all necessary
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corporate action on the part of each of PEC and PDC, as the case may be. This
Agreement has been duly executed and delivered by each of PEC and PDC and
(assuming the valid authorization, execution and delivery of this Agreement by
the Foundation and the Xxxxxxxxxx Charitable Remainder Trust) constitutes a
valid and binding obligation of each of PEC and PDC enforceable against PEC and
PDC in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law). No filing or registration with, or
authorization, consent or approval of, any domestic (federal and state),
foreign or supranational court, commission, governmental body, regulatory
agency, authority or tribunal (a "Governmental Agency") is required by or with
respect to PEC or PDC in connection with the execution and delivery of this
Agreement by PEC or PDC or is necessary for the consummation by PDC of the
Stock Purchase and the transactions contemplated by this Agreement, except for
(i) in connection or in compliance, with the provisions of the Securities Act
of 1933, as amended (the "Securities Act"), and the Securities Exchange Act of
1934 (the "Exchange Act"), (ii) such consents and approvals, orders,
registrations, authorizations, declarations and filings as may be required
under the "Blue Sky" laws of the State of Texas, or (iii) such filings and
approvals as may be required under the Xxxx-Xxxxx-Xxxxxx Anti-Trust
Improvements Act of 1976 ("Improvements Act").
SECTION 2.3 Capital Structure. As of the date hereof, the
authorized capital stock of PEC consists of 9,000,000 shares of PEC Common
Stock and 1,000,000 shares of preferred stock, par value $0.01 per share ("PEC
Preferred Stock"). At the close of business on the day immediately preceding
the date of this Agreement, (i) _________ shares of PEC Common Stock were
validly issued and outstanding, fully paid and nonassessable and free of
preemptive rights, and (ii) no shares of PEC Preferred Stock are issued and
outstanding. The PEC Common Stock is designated as a national market security
on an inter-dealer quotation system by the National Association of Securities
Dealers, Inc. All shares of PEC Common Stock issuable pursuant to the Stock
Purchase in accordance with this Agreement, will be, when so issued, duly
authorized, validly issued, fully paid and non-assessable and free of
preemptive rights.
SECTION 2.4 SEC Documents. PEC has filed all required
documents with the Securities and Exchange Commission ("SEC") since January 1,
1995 (the "PEC/SEC Documents"). As of their respective dates, the PEC/SEC
Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and none of the PEC/SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The consolidated financial statements of PEC included in the
PEC/SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with generally accepted
accounting principles (except, in the case of the unaudited statements, as
permitted by Form 10-Q
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of the SEC) applied on a consistent basis during the periods involved (except
as may be indicated therein or in the notes thereto) and fairly present the
consolidated financial position of PEC and its consolidated subsidiaries,
including PDC) as at the dates thereof and the consolidated results of their
operations and statements of cash flows for the periods then ended (subject, in
the case of the unaudited statements, to normal year-end audit adjustments and
to any other adjustments described therein).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF
THE FOUNDATION AND XXXXXXXXXX CHARITABLE REMAINDER TRUST
The Foundation and Xxxxxxxxxx Charitable Remainder Trust
severally but not jointly represent and warrant to PDC as follows:
SECTION 3.1 Organization, Standing and Power. The Foundation
is a non-profit corporation duly incorporated, validly existing and in good
standing under the laws of the State of Texas and has the requisite corporate
power and authority to carry on its activities now being conducted. Xxxxxxxxxx
Charitable Remainder Trust is a trust duly organized, validly existing and in
good standing under the laws of the State of Texas and has the requisite power
and authority to carry on its business now being conducted.
SECTION 3.2 Ownership of Xxx-Xxx Class B Stock. The
Foundation and Xxxxxxxxxx Charitable Remainder Trust own of record and
beneficially a total of _____________ shares and _______________ shares,
respectively, of the Xxx-Xxx Class B Stock. Each of them holds such Xxx-Xxx
Class B Stock free and clear of any restrictions on transfer (other than
restrictions under the Securities Act of 1933 and state securities laws),
taxes, Liens (as defined below in this Section), options, warrants, purchase
rights, contracts, commitments, equities, claims and demands. Neither the
Foundation nor Xxxxxxxxxx Charitable Remainder Trust is a party to (i) any
option, warrant, purchase right or other contract or commitment that could
require it to sell, transfer or otherwise dispose of any Xxx-Xxx Class B Stock
(other than pursuant to this Agreement), or (ii) any voting trust, proxy or
other agreement or understanding with respect to the Xxx-Xxx Class B Stock.
For purposes of this Agreement, "Liens" means liens, mortgages, pledges,
security interest, encumbrances, claims or charges of any kind.
SECTION 3.3 Authority; Non-Contravention. Each of the
Foundation and Xxxxxxxxxx Charitable Remainder Trust has all requisite power
and authority to enter into this Agreement and to consummate the Stock
Purchase. This Agreement has been duly executed and delivered by each of them
and (assuming the valid authorization, execution and delivery of this Agreement
by PEC and PDC) constitutes a valid and binding obligation of each of the
Foundation
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and Xxxxxxxxxx Charitable Remainder Trust enforceable against it in accordance
with the terms hereof, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law). The execution and delivery of this Agreement do not, and
the consummation of the Stock Purchase and compliance with the provisions
hereof will not, conflict with, or result in any violation of, or default (with
or without notice of lapse of time, or both) under or give rise to a right of
termination, cancellation or acceleration of any obligation or to the loss of a
material benefit under, or result in the creation of any Lien, security
interest, charges or encumbrances upon any of the properties or assets of the
Foundation or Xxxxxxxxxx Charitable Remainder Trust under, any provision of the
Articles of Incorporation or Bylaws of the Foundation (true and complete copies
of which as of the date hereof have been delivered to PEC and PDC) or the
agreement dated ____________________, 1997, with Xxxxx Xxxxxxxxxx, Trustee as a
party thereto, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to the Foundation or Xxxxxxxxxx Charitable Remainder
Trust, or (iii) any judgment, order, decree, statute, law, ordinance, rule,
regulation applicable to the Foundation or Xxxxxxxxxx Charitable Remainder
Trust or any of its respective properties or assets. No filing or registration
with or authorization, consent or approval of any third party is required by or
with respect to the Foundation or Xxxxxxxxxx Charitable Remainder Trust in
connection with the execution and delivery of this Agreement by them or as
necessary for the consummation by them of the Stock Purchase or any other
transaction contemplated by this Agreement, other than such filings and
approvals as may be required under the Improvements Act.
SECTION 3.4 Litigation. There is no suit, action,
investigation or proceeding pending or to the knowledge of the Foundation or
Xxxxxxxxxx Charitable Remainder Trust threatened against either of them at law
or in equity before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign that would materially impair the ability of the Foundation or
Xxxxxxxxxx Charitable Remainder Trust to perform its obligations hereunder or
to consummate the Stock Purchase, and there is no judgment, decree, injunction,
rule or order of any court, governmental department, commission, board, bureau,
agency, instrumentality or arbitrator to which the Foundation or Xxxxxxxxxx
Charitable Remainder Trust is subject that would materially impair the ability
of the Company to perform its obligations hereunder or to consummate the Stock
Purchase.
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ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1 Fees and Expenses. All costs and expenses
incurred by PEC or PDC in connection with this Agreement and the transaction
contemplated hereby shall be paid by PEC; such costs and expenses incurred by
the Foundation and Xxxxxxxxxx Charitable Remainder Trust shall be paid by them.
SECTION 4.2 Reasonable Efforts. Upon the terms and subject
to the conditions set forth in this Agreement, each of the parties agrees to
use all reasonable efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Stock Purchase and
the other transactions contemplated by this Agreement and the prompt
satisfaction of the conditions hereto.
SECTION 4.3 Indemnification. On and after the date of
Closing, Xxxxx Xxxxxxxxxx, the Foundation and Xxxxxxxxxx Charitable Remainder
Trust shall jointly and severally indemnify and hold PEC and PDC harmless
against and in respect of all actions, suits, demands, judgments, costs and
expenses (including reasonable attorneys' fees of PEC and PDC), relating to any
misrepresentation, breach of any representation or warranty, or non-fulfillment
of any agreement on the part of the Foundation or Xxxxxxxxxx Charitable
Remainder Trust contained in this Agreement.
SECTION 4.4 Public Announcements. Neither PEC, PDC, the
Foundation nor the Xxxxxxxxxx Charitable Remainder Trust shall issue any press
release or make any public statement with respect to the Stock Purchase prior
to Closing, unless otherwise required by law or the rules and regulations of
the Securities and Exchange Commission.
SECTION 4.5 Sales and Transfer Taxes. The Foundation and
Xxxxxxxxxx Charitable Remainder Trust agree to pay any and all sales and/or
transfer taxes due with respect to the Stock Purchase.
SECTION 4.6 Access to Information. The Foundation and the
Xxxxxxxxxx Charitable Remainder Trust shall afford to PDC and its counsel,
reasonable access and permit them to make such inspections as they may
reasonably require during the period from the date of this Agreement through
the date of Closing to records pertaining to the Xxx-Xxx Class B Stock. Except
as required by law, PDC will hold, and cause its representatives to hold, any
non-public information relating to the Xxx-Xxx Class B Stock.
SECTION 4.7 Action of the Foundation and Xxxxxxxxxx
Charitable Remainder Trust Pending Closing. During the period from the date of
this Agreement through the date of
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Closing, neither the Foundation nor Xxxxxxxxxx Charitable Remainder Trust shall
deliver, sell, pledge, dispose of or otherwise encumber any of the shares of
Xxx-Xxx Class B Stock owned by it or otherwise grant any rights, warrants or
options to acquire any such shares of Xxx-Xxx Class B Stock.
SECTION 4.8 No Solicitation. From and after the date hereof,
neither the Foundation nor Xxxxxxxxxx Charitable Remainder Trust will cause its
officers, directors, trustee, employees, agents or other representatives to
directly or indirectly, solicit or initiate any offer for the shares of Xxx-Xxx
Class B Stock owned by either of them, or solicit or initiate, directly or
indirectly, discussions, negotiations, considerations or inquiries concerning
an offer for such shares of Xxx-Xxx Class B Stock, from any person, or engage
in discussions or negotiations relating thereto, or provide to any other person
any information or data relating to the Xxx-Xxx Class B Stock for the purpose
of, or have any substantive discussions with any person relating to, or
otherwise cooperate with or assist or participate in, or facilitate, any offer
or any inquiry or proposal which would reasonably be expected to lead to any
effort or attempt by any person to effect an offer, or agree to endorse any
such inquiry or offer.
ARTICLE V
CONDITIONS PRECEDENT TO THE STOCK PURCHASE
SECTION 5.1 Conditions to Each Party's Obligation to Effect
the Stock Purchase. The respective obligations of each party to effect the
Stock Purchase shall be subject to the fulfillment or waiver (where
permissible) at or prior to the date of Closing of each of the of following
conditions:
(a) No Order. No governmental entity or court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
enter any law, rule, regulation, executive order, decree, injunction or other
order (whether temporary, preliminary or permanent) which is then in effect and
has the effect of prohibiting the Stock Purchase or any of the other
transactions contemplated hereby; provided that, in the case of any such
decree, injunction or other order, each of the parties shall have used
reasonable best efforts to prevent the entry of any such injunction or other
order and to appeal as promptly as practicable any decree, injunction or other
order that may be entered.
(b) Consummation of Asset Purchase. The Closing (as
defined in the Asset Purchase Agreement) of the Asset Purchase shall have
occurred contemporaneously with the closing of the Stock Purchase contemplated
hereby.
SECTION 5.2 Conditions to Obligations of the Foundation and
Xxxxxxxxxx Charitable Remainder Trust to Effect the Stock Purchase. The
obligation of the Foundation and
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Xxxxxxxxxx Charitable Remainder Trust to effect the Stock Purchase shall be
subject to the fulfillment at or prior to the Closing of the following
additional conditions; provided that the Foundation and Xxxxxxxxxx Charitable
Remainder Trust may waive any of such conditions in its sole discretion:
(a) Performance of Obligations; Representations and
Warranties. PEC and PDC shall have performed in all respects each of their
agreements contained in this Agreement required to be performed on or prior to
the Closing, each of the representations and warranties of PEC and PDC
contained in this Agreement shall be true and correct on and as of the date of
Closing as if made on and as of such date.
(b) Officers' Certificates. PEC and PDC shall have
furnished to the Foundation and Xxxxxxxxxx Charitable Remainder Trust a
certificate, dated the Closing, signed by the respective appropriate officers
of PEC and PDC certifying to the effect that to the best of the knowledge and
belief of each of them, the conditions set forth in Section 5.1 and Section
5.2(a) shall have been satisfied in full.
(c) Registration Statement on Form S-3. PEC shall have
filed a Registration Statement on Form S-3 with the SEC relating to the PEC
Shares.
(d) Registration Rights Agreement. PEC shall have
executed and delivered the Registration Rights Agreement in the form attached
as Exhibit B to the Asset Purchase Agreement.
(e) Delivery of Purchase Consideration. PEC and PDC
shall have made delivery to the Foundation and Xxxxxxxxxx Charitable Remainder
Trust of the Purchase Consideration as provided for in Section 1.2 of this
Agreement.
SECTION 5.3 Conditions to Obligations of PEC and PDC to
Effect the Stock Purchase. The obligations of PEC and PDC to effect the Stock
Purchase shall be subject to the fulfillment at or prior to the date of Closing
of the following additional conditions, provided that PEC may waive any such
conditions in its sole discretion:
(a) Performance of Obligations; Representations and
Warranties. The Foundation and Xxxxxxxxxx Charitable Remainder Trust shall
have performed in all material respects each of its agreements contained in
this Agreement required to be formed on or prior to the date of Closing and
each of the respective representations and warranties of the Foundation and
Xxxxxxxxxx Charitable Remainder Trust contained in this Agreement shall be true
and correct on and as of the Closing as if made on and as of such date.
(b) Officers' or Trustee's Certificate. The Foundation
and Xxxxxxxxxx Charitable Remainder Trust shall have furnished to PEC a
certificate, dated the Closing, certified
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to the effect that to the best knowledge and belief of the Foundation and
Xxxxxxxxxx Charitable Remainder Trust the conditions set forth in Section 5.1
and Section 5.3(a) have been satisfied.
(c) Opinion of Xxxxxxxx-Xxxxxxx, a Partnership of
Professional Corporations. PEC shall have received an opinion of
Xxxxxxxx-Xxxxxxx, counsel to the Foundation and Xxxxxxxxxx Charitable Remainder
Trust, dated the Closing, substantially to the effect that: (i) the
organization, existence and good standing of the Foundation and Xxxxxxxxxx
Charitable Remainder Trust are as stated in this Agreement; (ii) the Foundation
and Xxxxxxxxxx Charitable Remainder Trust has full power and authority to
execute, deliver and perform this Agreement, and this Agreement has been duly
authorized, executed and delivered by each of them and, assuming the due and
valid authorization, execution and delivery by PEC and PDC, constitutes the
legal, valid and binding agreement of the Foundation and Xxxxxxxxxx Charitable
Remainder Trust enforceable against them in accordance with its terms, except
to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of
general applicability relating to or affecting the enforcement of creditors'
rights and by the effect of general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law; (iii) the
execution and performance by the Foundation and Xxxxxxxxxx Charitable Remainder
Trust will not violate the Articles of Incorporation or Bylaws of the
Foundation or the trust instruments of Xxxxxxxxxx Charitable Remainder Trust
and will not violate, result in breach or, or constitute a default under, any
material lease, mortgage, contract, agreement, instrument, law, rule,
regulation, judgment, order or decree known to such counsel to which the
Foundation or Xxxxxxxxxx Charitable Remainder Trust is a party or to which it
or any of its properties or assets may be bound; (iv) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental agency or body which has not been obtained as required on behalf
of the Foundation or Xxxxxxxxxx Charitable Remainder Trust for consummation of
the transactions contemplated by this Agreement; (v) to the knowledge of such
counsel, there are no actions, suits or proceedings pending or threatened
against or affecting the Foundation or Xxxxxxxxxx Charitable Remainder Trust by
any governmental entity which seek to restrain, prohibit or invalidate the
transactions contemplated by this Agreement.
In rendering such opinion, counsel for the Foundation and
Xxxxxxxxxx Charitable Remainder Trust may rely as to matters of fact upon the
representations of officers or of the Foundation or the Trustee of Xxxxxxxxxx
Charitable Remainder Trust contained in any certificate delivered to such
counsel and certificates of public officials.
Such opinion shall be limited to the laws of the United States
of America and the State of Texas.
SECTION 5.4 Xxx-Xxx Class B Stock Certificates. PDC shall
have received all of the Xxx-Xxx Class B Stock certificates from the Foundation
and Xxxxxxxxxx Charitable Remainder Trust duly endorsed to PDC.
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SECTION 5.5 Investment Representation Letter. The Foundation
and the Xxxxxxxxxx Charitable Remainder Trust shall have executed and delivered
an investment representation letter substantially in the forms attached hereto
as Exhibit A(I) and Exhibit A(II), respectively.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.1 Termination. This Agreement may be terminated at
any time prior to the date of Closing:
(a) By mutual consent of PDC on the one hand, and the
Foundation and Xxxxxxxxxx Charitable Remainder Trust on the other;
(b) By PDC if either the Foundation or Xxxxxxxxxx
Charitable Remainder Trust shall have failed to comply in any material respect
with any of its covenants or agreements contained in this Agreement required to
be complied with by the Foundation or Xxxxxxxxxx Charitable Remainder Trust
prior to the date of such termination, which failure to comply has not been
cured within ten business days following receipt by the Foundation or
Xxxxxxxxxx Charitable Remainder Trust of notice of such failure to comply.
(c) By the Foundation and Xxxxxxxxxx Charitable Remainder
Trust if PDC shall have failed to comply with any of its covenants or
agreements contained in this Agreement required to be complied with by PDC
prior to the date of such termination, which failure to comply has not been
cured within ten business days following receipt by PDC of notice of such
failure to comply.
(d) If the Asset Purchase is not consummated in
accordance with the terms of the Asset Purchase Agreement;
(e) By either PEC on the one hand, or the Foundation and
Xxxxxxxxxx Charitable Remainder Trust on the other if there has been a material
breach by the other of any representation or warranty, which breach has not
been cured within the five business days following receipt by the breaching
party of notice of breach.
SECTION 6.2 Effect of Termination. In the event of
termination of this Agreement by either PEC on the one hand, or the Foundation
and Xxxxxxxxxx Charitable Remainder Trust on the other as provided in Section
6.1, this Agreement shall forthwith become void and there shall be no liability
hereunder on the part of PEC or PDC, the Foundation or Xxxxxxxxxx Charitable
Remainder Trust or their respective officers, directors or trustee; provided,
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however, that nothing contained in this Section 6.2 shall relieve any party
hereto from any liability for any breach of this Agreement.
SECTION 6.3 Amendment. This Agreement may be amended by the
parties hereto only by an instrument in writing signed on behalf of each of the
parties hereto.
SECTION 6.4 Waiver. At any time prior to the date of
Closing, the parties hereto may (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 which may legally be waived. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, sent by overnight courier or telecopied (with a confirmatory copy
sent by overnight courier) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to PEC or PDC, to:
Xxxxxxxxx Energy, Inc.
0000 Xxxxxx Xxxxxxx
X.X. Xxxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: A. Xxxxx Xxxxxxxxx
President and Chief Operating
Officer
with copies to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
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(b) if to the Foundation:
Xxx-Xxx Foundation
c/o Xxx-Xxx Drilling Company
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
(c) if to Xxxxxxxxxx Charitable Remainder Trust:
Xxxxx Xxxxxxxxxx, Trustee
c/o Xxx-Xxx Drilling Company
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
with copies to:
Xxxx Xxxxxxxx, Esq.
Xxxxxxxx-Xxxxxxx
Attorneys at Law
000 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
SECTION 7.2 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated, and the words "hereof', "herein" and "hereunder"
and similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement, unless the context otherwise requires.
SECTION 7.3 Counterparts. This Agreement may be executed in
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 parties.
SECTION 7.4 Entire Agreement; No Third-Party Beneficiaries.
This Agreement, including the documents and instruments referred to herein, (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties any rights or remedies hereunder; provided, however, that
legal counsel for the Foundation and Xxxxxxxxxx Charitable Remainder Trust may
rely upon the representations and warranties contained herein and in the
certificates delivered pursuant to Section 5.3(b).
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SECTION 7.5 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Texas,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
SECTION 7.6 Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
SECTION 7.7 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 are 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 a mutually
acceptable manner in order that the transactions be consummated as originally
contemplated to the fullest extent possible.
SECTION 7.8 Enforcement of This Agreement. The parties agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, PEC, PDC, the Foundation and Xxxxxxxxxx
Charitable Remainder Trust executed this Agreement as of the date first written
above.
PEC:
XXXXXXXXX ENERGY, INC.
By:
------------------------------------
A. Xxxxx Xxxxxxxxx
President and Chief Operating Officer
Attest:
-13-
14
-------------------------
Xxxxx X. Xxxxx, Secretary
[Signatures continued on following page]
PDC:
XXXXXXXXX DRILLING COMPANY
By:
----------------------------------
A. Xxxxx Xxxxxxxxx
President and Chief Operating
Officer
Attest:
-------------------------
Xxxxx X. Xxxxx, Secretary
FOUNDATION:
XXXXXXXXXX FOUNDATION
By:
----------------------------------
Xxxxx Xxxxxxxxxx
Chairman of the Board
Attest:
-------------------------
, Secretary
XXXXXXXXXX CHARITABLE REMAINDER
TRUST:
-------------------------------------
Xxxxx Xxxxxxxxxx, Trustee
-14-
15
EXHIBIT A(I)
FORM
OF
INVESTMENT REPRESENTATION LETTER
June ___, 1997
Xxxxxxxxx Energy, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
This letter is being submitted to Xxxxxxxxx Energy, Inc.
("PEC") in connection with and as a condition to closing by PEC and Xxxxxxxxx
Drilling Company ("PDC") of the stock purchase (the "Stock Purchase")
contemplated by the Agreement among PEC, PDC and Xxxxxxxxxx Foundation
("Foundation") and Xxxxx Xxxxxxxxxx, Trustee under Agreement dated May __,
1997. Capitalized terms not defined herein shall have the meaning given them
in the Memorandum (as defined below).
1. Representations and Warranties.
The undersigned hereby represents and warrants to PEC that the
following statements are true:
(a) The undersigned has been furnished a copy of the
Memorandum, dated June __, 1997 (the "Memorandum") containing a copy of PEC's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996, and all
other reports filed by PEC with the Securities and Exchange Commission since
January 1, 1997 (collectively, the "Reports") and has carefully reviewed the
Memorandum and the Reports, including, but not limited to, (i) the statements
in the Memorandum relating to taxation of the Stock Purchase and lack of free
transferability of the PEC Common Stock to be issued by PEC as consideration
for the Stock Purchase, and (ii) the section entitled "Disclosure Concerning
Forward- Looking Statements," setting forth certain Cautionary Statements or
risk factors relating to PEC and its businesses and operations.
(b) The undersigned has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in PEC vis-a-vis the PEC Common Stock to be issued by
PEC as consideration for the Stock Purchase.
EX A(I)-1
16
Xxxxxxxxx Energy, Inc.
[Date]
Page 2
(c) The undersigned has had an opportunity to ask
questions of PEC and its management concerning PEC and PDC, the businesses of
PEC and PDC and the PEC Common Stock and, if asked, all such questions have
been answered to the full satisfaction of the undersigned.
(d) The undersigned understands that PEC has not
registered the offer or sale of the PEC Common Stock under the Securities Act
of 1933, as amended (the "Act"), in reliance upon an exemption therefrom under
Section 4(2) of the Act and the provisions of Regulation D promulgated
thereunder. The undersigned therefore acknowledges that in no event may it
sell or otherwise transfer the PEC Common Stock without registration under the
Act (see paragraph (h) below).
(e) The undersigned represents that it will acquire the
PEC Common Stock for its own account, with no intention to distribute or offer
to distribute the same to others without registration under the Act, and
understands that the issuance by PEC of the PEC Common Stock will be predicated
upon the undersigned's lack of such intention.
(f) The undersigned understands that neither the
Securities and Exchange Commission nor the securities commissioner of any state
has received or reviewed any documents relative to an investment in PEC, or has
made any finding or determination relating to the fairness of an investment in
PEC.
(g) The undersigned acknowledges that stop transfer
instructions will be placed with PEC's transfer agent to restrict the resale,
pledge, hypothecation or other transfer of the PEC Common Stock.
(h) The undersigned acknowledges that, except as provided
in the Registration Rights Agreement attached as Exhibit B to the Asset
Purchase Agreement, PEC is under no obligation to register the PEC Common Stock
for sale under the Act or to assist the undersigned in complying with any
exemption from registration under the Act, or any state securities laws.
(i) The undersigned understands and acknowledges that the
foregoing representations and warranties will be relied upon by PEC in
connection with the issuance of the PEC Common Stock, the PEC Warrant and the
PEC Warrant Shares.
2. Indemnification.
EX A(I)-2
17
Xxxxxxxxx Energy, Inc.
[Date]
Page 3
The undersigned agrees to indemnify and hold harmless PEC and
PDC, or either of them, the officers, directors and affiliates of either of
them and each other person, if any, who controls either of them, within the
meaning of Section 15 of the Act, against any and all loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and all
expenses reasonably incurred in investigating, preparing or defending against
any litigation commenced or threatened or any claim whatsoever) arising out of
or based upon any false representation or warranty or failure by the
undersigned to comply with any covenant or agreement made by the undersigned
herein.
3. Survival.
All representations, warranties and covenants contained in
this letter shall survive the closing of the Stock Purchase.
Very truly yours,
XXXXXXXXXX FOUNDATION
By:
-----------------------------------
Xxxxx Xxxxxxxxxx
Chairman of the Board
EX A(I)-3
18
EXHIBIT A(II)
FORM
OF
INVESTMENT REPRESENTATION LETTER
June ___, 1997
Xxxxxxxxx Energy, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
This letter is being submitted to Xxxxxxxxx Energy, Inc.
("PEC") in connection with and as a condition to closing by PEC and Xxxxxxxxx
Drilling Company ("PDC") of the stock purchase (the "Stock Purchase")
contemplated by the Stock Purchase Agreement among PEC, PDC, the Xxxxxxxxxx
Foundation and Xxxxx Xxxxxxxxxx, Trustee under Agreement dated May ___, 1997
(the "Xxxxxxxxxx Charitable Remainder Trust"). Capitalized terms not defined
herein shall have the meaning given them in the Memorandum (as defined below).
1. Representations and Warranties.
The undersigned hereby represents and warrants to PEC that the
following statements are true:
(a) The undersigned has been furnished a copy of the
Memorandum, dated June __, 1997 (the "Memorandum") containing a copy of PEC's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996, and all
other reports filed by PEC with the Securities and Exchange Commission since
January 1, 1997 (collectively, the "Reports") and has carefully reviewed the
Memorandum and the Reports, including, but not limited to, (i) the statements
in the Memorandum relating to taxation of the Stock Purchase and lack of free
transferability of the PEC Common Stock to be issued by PEC as consideration
for the Stock Purchase, and (ii) the section entitled "Disclosure Concerning
Forward- Looking Statements," setting forth certain Cautionary Statements or
risk factors relating to PEC and its businesses and operations.
(b) The undersigned has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in PEC vis-a-vis the PEC Common Stock to be issued by
PEC as consideration for the Stock Purchase.
EX A(II)-1
19
Xxxxxxxxx Energy, Inc.
[Date]
Page 2
(c) The undersigned has had an opportunity to ask
questions of PEC and its management concerning PEC and PDC, the businesses of
PEC and PDC and the PEC Common Stock and, if asked, all such questions have
been answered to the full satisfaction of the undersigned.
(d) The undersigned understands that PEC has not
registered the offer or sale of the PEC Common Stock under the Securities Act
of 1933, as amended (the "Act"), in reliance upon an exemption therefrom under
Section 4(2) of the Act and the provisions of Regulation D promulgated
thereunder. The undersigned therefore acknowledges that in no event may it
sell or otherwise transfer the PEC Common Stock without registration under the
Act (see paragraph (h) below).
(e) The undersigned represents that it will acquire the
PEC Common Stock for its own account, with no intention to distribute or offer
to distribute the same to others without registration under the Act, and
understands that the issuance by PEC of the PEC Common Stock will be predicated
upon the undersigned's lack of such intention.
(f) The undersigned understands that neither the
Securities and Exchange Commission nor the securities commissioner of any state
has received or reviewed any documents relative to an investment in PEC, or has
made any finding or determination relating to the fairness of an investment in
PEC.
(g) The undersigned acknowledges that stop transfer
instructions will be placed with PEC's transfer agent to restrict the resale,
pledge, hypothecation or other transfer of the PEC Common Stock.
(h) The undersigned acknowledges that, except as provided
in the Registration Rights Agreement attached as Exhibit B to the Asset
Purchase Agreement, PEC is under no obligation to register the PEC Common Stock
for sale under the Act or to assist the undersigned in complying with any
exemption from registration under the Act, or any state securities laws.
(i) The undersigned understands and acknowledges that the
foregoing representations and warranties will be relied upon by PEC in
connection with the issuance of the PEC Common Stock, the PEC Warrant and the
PEC Warrant Shares.
2. Indemnification.
EX A(II)-2
20
Xxxxxxxxx Energy, Inc.
[Date]
Page 3
The undersigned agrees to indemnify and hold harmless PEC and
PDC, or either of them, the officers, directors and affiliates of either of
them and each other person, if any, who controls either of them, within the
meaning of Section 15 of the Act, against any and all loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and all
expenses reasonably incurred in investigating, preparing or defending against
any litigation commenced or threatened or any claim whatsoever) arising out of
or based upon any false representation or warranty or failure by the
undersigned to comply with any covenant or agreement made by the undersigned
herein.
3. Survival.
All representations, warranties and covenants contained in
this letter shall survive the closing of the Stock Purchase.
Very truly yours,
XXXXXXXXXX CHARITABLE REMAINDER TRUST
By:
------------------------------------
Xxxxx Xxxxxxxxxx
Trustee
EX A(II)-3
