Exhibit 3
Shareholder and Voting Agreement
This Shareholder and Voting Agreement (this "Agreement") executed as of the
3rd day of February, 1999 by and among Magnum Hunter Resources, Inc., a Nevada
corporation ("MHR"), Oneok Resources Company, a Delaware corporation ("ONEOK"),
and Oneok, Inc., an Oklahoma corporation that is executing this Agreement for
the limited purpose set forth in Section 6.8 hereof ("Parent");
W I T N E S S E T H:
- - - - - - - - - -
Whereas, MHR has agreed to issue to ONEOK, and ONEOK has agreed to purchase
from MHR, $50 million of MHR's 1999 Series A 8% Convertible Preferred Stock (the
"Preferred Stock"); and
Whereas, in connection with MHR's issuance of the Preferred Stock to ONEOK,
MHR and ONEOK desire to enter into this Agreement to set forth the rights and
obligations of MHR and ONEOK with respect to ONEOK's representation on MHR's
Board of Directors; voting by ONEOK of both the Preferred Stock and the common
stock of MHR (the "Common Stock") into which the Preferred Stock is convertible;
the purchase, sale and ownership of the Preferred Stock and Common Stock of MHR
by ONEOK; and other matters;
Now, Therefore, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, MHR and ONEOK do hereby agree as follows:
I.
Certain Definitions
1.1. Specific Definitions. For purposes of this Agreement, the following
terms shall have the respective meanings ascribed thereto:
(a) "Affiliate" means any corporation, partnership, business entity
or other person controlling, controlled by, or under common
control with, another person.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Fully Diluted Basis" means, for purposes of calculating any
fraction, ratio,
percentage or other determination with respect to MHR's Common
Stock, that number of shares of Common Stock that would be owned
or outstanding after taking into account the conversion of the
Preferred Stock and the conversion of MHR's 1996 Series A
Preferred Stock.
(d) "Group" has the meaning ascribed thereto in Section 13(d) of the
Exchange Act.
(e) "Indenture" means the Indenture dated as of May 29, 1997, as
amended on January 27, 1999, relating to the Senior Notes among
MHR, the Subsidiary Guarantors named therein and First Union
National Bank of North Carolina, as trustee.
(f) "Liquidation Value" means $1,000 per each share of Preferred
Stock.
(g) "MHR Change of Control" means (i) any direct or indirect
acquisition by the ONEOK Group or persons acting as a Group with
the ONEOK Group of such number of shares of Common Stock of MHR
(including Preferred Stock or other securities convertible into,
or exercisable or exchangeable for, such Common Stock) as would
increase the aggregate ownership by the ONEOK Group and such
persons to more than 40% of the outstanding voting Common Stock
of MHR; (ii) the replacement of a majority of the Board of
Directors of MHR over any rolling two-year period from the
directors who constituted the Board at the beginning of such
period with directors whose replacement shall not have been
approved by a majority of the Board then still in office who
either were members of the Board at the beginning of such period
or whose election to the Board was previously so approved; (iii)
a merger, consolidation or other business combination with
respect to MHR that results in a majority of the outstanding
voting securities of the surviving entity being owned by the
ONEOK Group and any persons acting as a Group with the ONEOK
Group; (iv) the occurrence of a "Change of Control" under the
Indenture if any of the Senior Notes are then outstanding; (v)
the occurrence of a "change of control" under the debt
instruments governing any outstanding indebtedness of MHR; and/or
(vi) the sale of all or substantially all the assets, liquidation
or dissolution of MHR.
(h) "MHR Takeover Event" means (i) any direct or indirect acquisition
by any person or Group (other than the ONEOK Group) of such
number of shares of Common Stock (or securities convertible into
or exchangeable for such Common Stock) of MHR as would increase
the aggregate ownership by such person or Group to more than 50%
of the outstanding Common Stock of MHR; (ii) the replacement of a
majority of the Board of Directors of MHR over any two-year
period from the directors who constituted the applicable Board at
the beginning of such period with directors whose replacement
shall
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not have been approved by a majority of such Board then still in
office who either were members of that Board at the beginning of
such period or whose election to such Board was previously so
approved; (iii) a merger, consolidation or other business
combination with respect to MHR that results in a shareholder or
Group outside of the ONEOK Group becoming a majority owner of the
outstanding voting securities of the surviving entity; and/or
(iv) the sale of all or substantially all the assets, liquidation
or dissolution of MHR.
(i) "MHR Termination Default" means any of the following:
(i) the failure of MHR to pay the 8% cash dividend on
the Preferred Stock for two consecutive quarters
(if, in each such case, ONEOK has provided MHR
with written notice of such failure and the
required dividend is not paid within three
business days of MHR's receipt of such notice);
(ii) the occurrence of an event of default under the
Indenture that has resulted in the acceleration of
the Senior Notes;
(iii) the occurrence of an event of default under any
credit facility of MHR with aggregate outstanding
indebtedness of at least $25 million and such
default has resulted in the acceleration of such
indebtedness;
(iv) any bankruptcy, insolvency, reorganization,
liquidation or similar proceeding shall be
instituted by, or involuntarily instituted
against, MHR; provided, however, in the event of a
proceeding involuntarily instituted against MHR,
such proceeding shall not have been stayed within
60 days;
(v) the failure of MHR to nominate ONEOK's nominees to
MHR's Board of Directors or to use MHR's
reasonable best efforts to facilitate their
election (including without limitation the
solicitation of proxies for their election) as
contemplated by Article III hereof; and/or
(vi) the 180th day after the occurrence of a Voting
Event;
unless, MHR cures the applicable default(which, in
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the case of accelerated indebtedness under clauses
(ii) and (iii), shall mean the repayment in full
of such indebtedness) prior to MHR's receipt of
written notice from ONEOK electing to terminate
this Agreement pursuant to Section 6.1 hereof.
(j) "ONEOK Group" means ONEOK and its Affiliates.
(k) "ONEOK Ownership Percentage" means a fraction, determined as of
the applicable date, of which (i) the numerator is the number of
shares of Common Stock (including Common Stock issuable upon
conversion of the Preferred Stock) owned by the ONEOK Group and
(ii) the denominator is the number of shares of Common Stock of
MHR issued and outstanding on a Fully Diluted Basis.
(l) "Securities Act" means the Securities Act of 1933, as amended.
(m) "Senior Notes" mean MHR's $140 million in original principal
amount of 10% Senior Notes due 2007 that were issued under the
Indenture.
(n) "Third Party Change of Control" means (i) any direct or indirect
acquisition by a third party or persons acting as a Group with
such third party of such number of shares of Common Stock of MHR
(including securities convertible into, or exercisable or
exchangeable for, such Common Stock) as would increase the
aggregate ownership by such third party to more than 40% of the
outstanding voting Common Stock of MHR; (ii) the replacement of a
majority of the Board of Directors of MHR over any rolling
two-year period from the directors who constituted the Board at
the beginning of such period with directors whose replacement
shall not have been approved by a majority of the Board then
still in office who either were members of the Board at the
beginning of such period or whose election to the Board was
previously so approved; (iii) a merger, consolidation or other
business combination with respect to MHR that results in a
majority of the outstanding voting securities of the surviving
entity being owned by a third party and any persons acting as a
Group with such third party; (iv) the occurrence of a "Change of
Control" under the Indenture if any of the Senior Notes are then
outstanding; (v) the occurrence of a "Change of Control" under
any MHR senior credit facility; and/or (vi) the sale of all or
substantially all the assets, liquidation or dissolution of MHR.
(o) "Voting Event" means any of the "Special Voting Events" and
"Limited Voting Events" enumerated in, respectively, Sections
6.2.1 and 6.2.2 of the 1996 Certificate of Designations (as
defined in Section 5.12).
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II.
Representations and Warranties
2.1. Representations and Warranties of MHR. MHR represents and warrants
that (i) MHR is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada; (ii) this Agreement has been
duly authorized by the Board of Directors of MHR (such being all corporate
action required of MHR) and constitutes the valid and binding obligation of MHR
enforceable against it in accordance with its terms, except to the extent such
enforceability may be limited by bankruptcy and insolvency laws and general
principles of equity (including limitations on the availability of specific
performance); and (iii) this Agreement does not violate any law to which MHR is
subject or any contract, order or decree by which MHR is bound.
2.2. Representations and Warranties of ONEOK. ONEOK represents and warrants
that (i) ONEOK is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware; (ii) this Agreement has been
duly authorized by the Board of Directors of ONEOK (such being all corporate
action required of ONEOK) and constitutes the valid and binding obligation of
ONEOK enforceable against it in accordance with its terms, except to the extent
such enforceability may be limited by bankruptcy and insolvency laws and general
principles of equity (including limitations on the availability of specific
performance); and (iii) this Agreement does not violate any law to which ONEOK
is subject or any contract, order or decree by which ONEOK is bound.
2.3. Representations and Warranties of Parent. Parent represents and
warrants that (i) Parent is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Oklahoma; (ii) this
Agreement has been duly authorized by all corporate action required of Parent
and constitutes the valid and binding obligation of Parent enforceable against
it in accordance with its terms, except to the extent such enforceability may be
limited by bankruptcy and insolvency laws and general principles of equity
(including limitations on the availability of specific performance); and (iii)
this Agreement does not violate any law to which Parent is subject or any
contract, order or decree by which Parent is bound.
III.
Board Representation
3.1. Board Representation Based on Stock Ownership. ONEOK will have the
right to nominate (i) two members to MHR's Board of Directors (or at least 20%
of the total number of members of the Board) so long as the ONEOK Group owns
Common Stock and Preferred Stock that together aggregate at least 20% of the
outstanding Common Stock of MHR on a Fully Diluted Basis
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or (ii) one member to MHR's Board of Directors (or at least 10% of the total
number of members of the Board) so long as the ONEOK Group owns Common Stock and
Preferred Stock that together aggregate at least 10% (but less than 20%) of the
outstanding Common Stock of MHR on a Fully Diluted Basis. To exercise its right
to nominate a member or members to MHR's Board of Directors, ONEOK will provide
written notice to MHR of its nominee or nominees not less than 90 days prior to
the date of MHR's annual meeting of shareholders (or, if directors are to be
elected at a special meeting of shareholders, not later than ten days after
ONEOK has been notified by MHR that a special meeting will be conducted for such
purpose). MHR will use its reasonable best efforts to facilitate the election of
ONEOK's nominees to MHR's Board of Directors (including without limitation the
solicitation of proxies for their election).
3.2. Board Representation Following Certain Events. Notwithstanding Section
3.1 hereof, upon and after the occurrence of any MHR Termination Default , ONEOK
will have the right to nominate, subject to the rights of the TCW Holders under
the 1996 Certificate of Designations (as such terms are defined in Section 5.12
hereof), that total number of members of the Board of Directors of MHR (rounded
down to the nearest whole director) equal to (i) the then applicable ONEOK
Ownership Percentage multiplied by (ii) the then applicable number of directors
constituting the entire Board (after taking all of ONEOK's nominees to such
Board into account). If following an MHR Termination Default described in any of
clauses (i), (ii) or (iii) of the definition thereof, such MHR Termination
Default is cured (which, in the case of accelerated indebtedness under clauses
(ii) and (iii), shall mean the repayment in full of such indebtedness) within
180 days after the occurrence of such MHR Termination Default, the number of
ONEOK representatives on MHR's Board of Directors shall thereafter be determined
in accordance with Section 3.1 hereof effective as of MHR's next annual meeting
of shareholders.
3.3. Board Representation if Board Size Increased. In the event the size of
MHR's Board of Directors is increased above eight members, ONEOK shall have the
right to nominate such number of directors as shall cause its percentage of
directors on the Board immediately after the increase in Board size to at least
equal the percentage of directors to which ONEOK would be entitled (rounded down
to the nearest whole director) based upon the ONEOK Ownership Percentage. In
such event MHR will (i) cause its Board of Directors to fill the additional
directorship or directorships to which ONEOK is entitled, until the next annual
meeting of shareholders of MHR, with a director or directors designated by ONEOK
and (ii) nominate ONEOK's designee or designees to such additional directorship
or directorships at the next annual meeting of shareholders of MHR.
3.4. Vacancies. In the event of the death, resignation or removal of a
director of MHR nominated by ONEOK, MHR will (i) cause its Board of Directors to
fill the vacant directorship until the next annual meeting of shareholders of
MHR with a director designated by ONEOK and (ii) nominate ONEOK's designee to
fill such directorship at the next annual meeting of shareholders of MHR;
provided, however, if the vacant directorship results from the removal without
cause of a ONEOK designee on MHR's Board, MHR will nominate another ONEOK
designee to fill such directorship at the next annual meeting of shareholders of
MHR.
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3.5. Approval of ONEOK Representatives. Any nominee of ONEOK to MHR's Board
of Directors (other than executive officers of Parent on the date hereof) shall
be subject to the approval of MHR, which may only withhold such approval for
reasonable business reasons proffered in good faith.
IV.
Voting of MHR Stock
4.1. Requirement to Vote Stock. Subject to the other provisions of Article
IV of this Agreement, ONEOK will, and will cause each member of the ONEOK Group
to, vote all of its Common Stock and Preferred Stock at every annual and special
meeting of shareholders of MHR and with respect to each matter submitted to
shareholders for approval.
4.2. Partial Proportionate Voting. Except as otherwise expressly provided
in Section 4.3 hereof, at each annual and special meeting of shareholders of
MHR, ONEOK will, and will cause each member of the ONEOK Group to, (i) vote up
to one-third of the aggregate voting power of its Common Stock and Preferred
Stock of MHR in its sole discretion and (ii) vote the remainder of its Common
Stock and Preferred Stock of MHR in the same proportions as all shares of voting
stock of MHR other than the Common Stock and Preferred Stock owned by the ONEOK
Group are voted. ONEOK will execute such proxy or proxies as MHR may from time
to time reasonably request to effect the proportionate voting of ONEOK's Common
Stock and Preferred Stock in the manner contemplated by this Section 4.2.
4.3. Discretionary Voting on Certain Matters. Any member of the ONEOK Group
may vote all of its Common Stock and Preferred Stock in such member's discretion
with respect to (i) a proposed Third Party Change of Control with respect to MHR
(other than a proposed change of control initiated by one or more members of the
ONEOK Group or in which any member of the ONEOK Group is participating as an
acquiring party), (ii) any amendment to MHR's articles of incorporation and/or
(iii) any vote required by the American Stock Exchange and/or such other
national stock exchange upon which any class of MHR's equity securities are then
listed.
4.4. Relationship to Certificate of Designations. The provisions of this
Article IV shall not diminish the voting rights of the Preferred Stock set forth
in Section 8(b) of the Certificate of Designations relating to the Preferred
Stock.
V.
Ownership, Purchase and Sale of MHR's Stock and Senior Notes
5.1. Limitation on Purchases of Common Stock. Except as otherwise expressly
provided in Sections 5.2 and 5.3 hereof, ONEOK will not, nor will ONEOK permit
any member of the ONEOK Group to, purchase any shares of Common Stock of MHR or
any securities other than the $50 million in Preferred Stock purchased on the
date hereof that are convertible into, or exercisable or exchangeable for,
Common Stock of MHR.
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5.2. Preemptive Right in Public Offerings. In the event MHR proposes to
issue any equity securities in a registered underwritten public offering
(excluding securities issuable (i) pursuant to MHR's present or future option
plans or other employee benefit plans of any nature whatsoever for MHR's
directors, employees and consultants, (ii) in a business combination on a
registration statement on Form 4 (or any successor form) under the Securities
Act, (iii) pursuant to a transaction governed by Rule 145 under the Securities
Act and/or (iv) as dividends or upon the conversion, exercise or exchange of
other securities), then the ONEOK Group will have the preemptive right to
acquire up to that number of equity securities in the public offering as would
cause the ONEOK Ownership Percentage on a Fully Diluted Basis to be the same
immediately following consummation of such public offering as the ONEOK
Ownership Percentage on a Fully Diluted Basis immediately prior thereto (the
"Preemptive Right Securities"). In the event MHR proposes to issue any equity
securities in a public offering to which the ONEOK Group has the preemptive
right set forth in this Section 5.2, (i) MHR will provide ONEOK with written
notice at least 15 days prior to filing the applicable registration statement
with the Securities and Exchange Commission and (ii) the ONEOK Group may elect
to exercise its preemptive right with respect to such equity offering by
providing written notice of such election to MHR within such 15-day period. If
the ONEOK Group timely elects to exercise its preemptive right by providing such
notice to MHR, the ONEOK Group shall have the right and obligation to purchase
the Preemptive Right Securities at the public offering price at the time of, and
subject to, consummation of the public equity offering.
5.3. Right to Maintain Proportionate Ownership. In the event MHR issues any
voting Common Stock or preferred stock convertible into voting Common Stock, and
except in those situations expressly covered by Section 5.2 hereof, (i) MHR will
give written notice to ONEOK of each such stock issuance within 45 days after
the end of the calendar quarter during which such issuance occurred and (ii) the
ONEOK Group may, at any time during the 180-day period immediately following its
receipt of such notice, purchase, at MHR's option, in the open market or from
MHR such additional number of shares of its capital stock (which, if the
purchase is from MHR, may at MHR's option be Preferred Stock or voting Common
Stock and shall be sold at such price and terms as are mutually agreed by MHR
and the ONEOK Group) as is necessary to cause the ONEOK Ownership Percentage
immediately following such purchase to equal the ONEOK Ownership Percentage
immediately prior to MHR's issuance of the voting Common Stock or convertible
preferred stock.
5.4. Effect of Stock Ownership Exceeding 40%. If at any time the ONEOK
Group's ownership of Common Stock of MHR (including Common Stock of MHR issuable
upon conversion of the Preferred Stock) increases or appears to increase above
40% resulting in the ONEOK Group causing or appearing to cause a "Change of
Control" under the Indenture, (i) the applicable putative stock acquisition or
other transaction will for all purposes be void ab initio and of no force or
effect, and MHR will instruct its stock transfer agent not to honor such
putative transaction; (ii) the ONEOK Group will, within five days after the
putative transaction, take all actions necessary to reduce its ownership of
Common Stock of MHR (including Common Stock of MHR issuable upon conversion of
the Preferred Stock) to not more than 40%; and (iii) if notwithstanding MHR's
and the ONEOK Group's compliance with clauses (i) and (ii) of this sentence MHR
is required to make a
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"Change of Control Offer" under the Indenture, ONEOK will, or will cause the
ONEOK Group to, make available to MHR sufficient financing upon mutually agreed
terms (which terms will be no less favorable to MHR than, at MHR's option, those
terms set forth in the Indenture or such terms as are commercially available) to
repurchase any of the Senior Notes that are then outstanding and tendered to MHR
pursuant to its "Change of Control Offer." Notwithstanding the immediately
preceding sentence, if the ONEOK Group's ownership interest in MHR increases
above 40% as a direct result of a repurchase of Common Stock by MHR and/or one
of its Affiliates, the ONEOK Group will not be obligated to provide financing to
MHR to repurchase the Senior Notes tendered to MHR.
5.5. Limitation on Purchases of Senior Notes. ONEOK will not, nor will it
permit any member of the ONEOK Group to, purchase in the aggregate a principal
amount of the Senior Notes that causes the ONEOK Group to own a higher
percentage of the $140 million of Senior Notes originally issued than the ONEOK
Ownership Percentage at the time such purchase of Senior Notes is made.
5.6. One-Year Prohibition on MHR's Stock Sales. During the one-year period
commencing on the date hereof, and except as otherwise expressly provided in
Section 5.4 hereof, the ONEOK Group will not directly or indirectly sell
(whether directly or indirectly through any derivative or equity-linked
security), pledge, hypothecate, convey or otherwise transfer any shares of the
Preferred Stock.
5.7. Right of First Purchase on Subsequent Stock Sales. If at any time
after the one-year period commencing on the date hereof, the ONEOK Group
proposes directly or indirectly to sell (whether directly or indirectly through
any derivative or equity-linked security), pledge, hypothecate, convey or
otherwise transfer any shares of the Preferred Stock (or, in the event of a
private placement, Common Stock issuable upon conversion of the Preferred
Stock), to the extent such amount of shares exceeds 10% of the then outstanding
Common Stock of MHR on a Fully Diluted Basis (the "Excess Sale Amount") during
any period of 12 consecutive calendar months, MHR shall have a right of first
purchase to acquire the Excess Sale Amount to be exercised by notice to ONEOK
within ten days after its receipt of written notice of, and upon substantially
the same terms and conditions as, the bona fide third party transaction. If MHR
declines to exercise its right of first purchase and the terms of the proposed
third party transaction are thereafter changed, ONEOK must again provide MHR
with written notice of the proposed transaction and MHR will thereafter again
have a right of first purchase to acquire the Excess Sale Amount to be exercised
by notice to ONEOK within ten days after its receipt of such notice and upon
substantially the same terms and conditions as the revised bona fide third party
transaction.
5.8. Prohibition on Sales to Significant Shareholders. ONEOK will not, nor
will it permit any member of the ONEOK Group to, directly or indirectly
knowingly sell (whether directly or indirectly through any derivative or
equity-linked security), pledge, hypothecate, convey or otherwise transfer any
shares of the Preferred Stock (or Common Stock issuable upon conversion of the
Preferred Stock) to any prospective transferee or transferees which, together
with any Affiliates or persons acting as a Group therewith, would become the
record or beneficial owner or owners of an amount of capital stock that exceeds
10% of the outstanding Common Stock of MHR on a Fully
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Diluted Basis after taking such sale, pledge, hypothecation, conveyance or other
transfer into account; provided, however, this Section 5.8 shall not operate so
as to prohibit any transfers to members of the ONEOK Group. In fulfilling its
obligations pursuant to the immediately preceding sentence, ONEOK, in connection
with any transaction not constituting a public offering, shall make reasonable
inquiry of, and obtain appropriate written representations from, the prospective
purchaser or purchasers to determine its then-existing ownership of Common Stock
of MHR (including Preferred Stock and other securities convertible into, or
exercisable or exchangeable for, such Common Stock).
5.9. Standstill. ONEOK will not, nor will it permit any member of the ONEOK
Group to, at any time effect an MHR Change of Control with respect to MHR unless
such MHR Change of Control is approved by the holders of at least two-thirds of
the outstanding voting securities of MHR other than the ONEOK Group.
5.10. Required Repurchase Upon MHR Takeover Event. At any time within 180
days after the occurrence of any MHR Takeover Event with respect to which the
ONEOK Group voted all of its Common Stock and Preferred Stock against such MHR
Takeover Event, ONEOK shall have the right to require MHR to purchase, upon 45
days prior written notice to MHR, any or all Preferred Stock then owned by the
ONEOK Group at a purchase price equal to 108% of the Liquidation Value.
5.11. Certain Redemption Requirements. Notwithstanding anything to the
contrary in the Certificate of Designations relating to the Preferred Stock, MHR
agrees that, unless MHR redeems all of the Preferred Stock then held by the
ONEOK Group, it shall not redeem shares of the Preferred Stock from the ONEOK
Group if immediately after such redemption ONEOK would not be entitled to
nominate at least one member of MHR's Board of Directors pursuant to its rights
hereunder.
5.12. TCW Preferred Stock. MHR has previously issued shares of MHR's 1996
Series A Preferred Stock to certain holders (the "TCW Holders") pursuant to that
certain Stock Purchase Agreement dated as of December 6, 1996 (the "TCW Stock
Purchase Agreement") and the Certificate of Voting Powers, Designations,
Preferences, and Relative, Participating, Optional or Other Special Rights of
1996 Series A Convertible Preferred Stock (the "1996 Certificate of
Designations") relating thereto. Upon the occurrence of, or as MHR has notice of
the possibility of the occurrence of, any Voting Event, or any other event which
would constitute a breach of or default under the TCW Stock Purchase Agreement
or the 1996 Certificate of Designations (each, a "TCW Default Event"), MHR shall
immediately (i) provide written notice thereof to ONEOK and (ii) use its
reasonable best efforts to take all such action as is necessary to cure or
obtain from the TCW Holders the appropriate waivers of such TCW Default Event.
MHR shall keep ONEOK informed as to the status and resolution of each TCW
Default Event and shall use its reasonable best efforts to take all such action
toward resolution of each TCW Default Event as ONEOK shall reasonably request.
VI.
Miscellaneous Provisions
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6.1. Term. This Agreement will commence on the date hereof and will
terminate on the first to occur of (i) an MHR Change of Control; (ii) such time
as the ONEOK Group ceases to own Common Stock and Preferred Stock that together
aggregate at least 10% of the outstanding Common Stock of MHR on a Fully Diluted
Basis; (iii) February 3, 2014; (iv) written notice from ONEOK to MHR to
terminate this Agreement following an MHR Termination Default; and (iv) the
mutual agreement of MHR and ONEOK to terminate this Agreement.
6.2. Legend. The Preferred Stock and any Common Stock issued to ONEOK shall
bear the following legend:
THE SHARES OF STOCK OF MAGNUM HUNTER RESOURCES, INC. ("MHR") EVIDENCED
BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VOTING AGREEMENTS, STOCK
TRANSFER RESTRICTIONS AND OTHER REQUIREMENTS SET FORTH IN THE
SHAREHOLDER AND VOTING AGREEMENT DATED AS OF FEBRUARY 3, 1999 AMONG
MHR, ONEOK RESOURCES COMPANY AND ONEOK, INC. A COPY OF SUCH AGREEMENT
MAY BE OBTAINED WITHOUT CHARGE FROM MHR AT ITS PRINCIPAL PLACE OF
BUSINESS.
6.3. Construction. If any provision of this Agreement is invalid or
unenforceable as written but may be rendered valid and enforceable by limitation
thereof, then such provision shall be limited so as to be valid and enforceable
to the maximum extent permitted by applicable law.
6.4. Specific Enforcement. Either MHR or ONEOK may specifically enforce
this Agreement or any provision hereof by requesting injunctive relief from a
court of competent jurisdiction without the necessity of posting bond.
6.5. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Nevada.
6.6. Notices. Any notice required or permitted by this Agreement will be
deemed sufficient if in writing and sent by certified or registered mail, return
receipt requested, or hand delivered and if addressed:
(i) if to MHR:
Magnum Hunter Resources, Inc.
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Vice President and General Counsel
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(ii) if to ONEOK or Parent:
Oneok Resources Company
Oneok, Inc.
000 Xxxx Xxxxx Xx.
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, President and Chief Operating Officer
Either party may change its address for notice purposes by providing notice of
its new address to the other party in the manner specified above.
6.7. Amendment. This Agreement may only be amended by an instrument in
writing executed by both parties hereto.
6.8. Execution by Parent. Parent in executing this Agreement for the
limited purpose of assuring compliance herewith in all respects by each member
of the ONEOK Group.
6.9. No Unilateral Assignment; Successors and Assigns. None of MHR, ONEOK
or Parent may assign this Agreement without the express written consent of the
other parties hereto; provided, however, ONEOK may transfer the Preferred Stock
to any member of the ONEOK Group subject to such member complying with Section
6.10. This Agreement will be binding upon, and will inure to the benefit of,
MHR, ONEOK and Parent and their respective successors and permitted assigns.
6.10. Restrictions Binding on Transferees. ONEOK will not, nor will ONEOK
or Parent permit any member of the ONEOK Group to, transfer any or all of the
Preferred Stock to any transferee (including any member of the ONEOK Group and
any third party transferee) unless such transferee agrees in writing, in a
manner reasonably satisfactory to MHR, to be bound by this Agreement.
In Witness Whereof, MHR, ONEOK and Parent have executed this Agreement as
of the date first set forth above.
Magnum Hunter Resources, Inc.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
President and Chief Executive Officer
Oneok Resources Company
12
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President
Oneok, Inc.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President
13
