EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF OCTOBER 14, 1998
BETWEEN
XXXX-XxXXX CORPORATION
AND
ORYX ENERGY COMPANY
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TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER...................................... 9
1.1 The Merger............................................... 9
1.2 Closing.................................................. 9
1.3 Effective Time........................................... 9
1.4 Effects of the Merger.................................... 10
1.5 Certificate of Incorporation............................. 10
1.6 By-Laws.................................................. 10
1.7 Officers and Directors of Surviving
Corporation.............................................. 10
1.8 Reverse Stock Split...................................... 11
1.9 Effect of Merger on Capital Stock........................ 11
1.10 Stock Options............................................ 11
1.11 Certain Adjustments...................................... 12
ARTICLE II
EXCHANGE OF CERTIFICATES............................... 13
2.1 Exchange Fund............................................ 13
2.2 Exchange and Distribution Procedures..................... 13
2.3 Distributions with Respect to Unexchanged
Shares................................................... 14
2.4 No Further Ownership Rights in Oryx Common
Stock.................................................... 14
2.5 No Fractional Shares..................................... 14
2.6 Termination of Exchange Fund............................. 15
2.7 No Liability............................................. 15
2.8 Investment of the Exchange Fund.......................... 15
2.9 Lost Certificates........................................ 15
2.10 Withholding Rights....................................... 16
2.11 Further Assurances....................................... 16
2.12 Stock Transfer Books..................................... 16
2.13 Affiliates............................................... 16
ARTICLE III
REPRESENTATIONS AND WARRANTIES............................ 17
3.1 Representations and Warranties of Xxxx-
XxXxx.................................................... 17
(a) Organization, Standing and Power;
Subsidiaries.................................... 17
(b) Capital Structure............................... 18
(c) Authority; No Conflicts......................... 19
(d) Reports and Financial Statements................ 20
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(e) Information Supplied............................ 21
(f) Board Approval.................................. 22
(g) Vote Required................................... 22
(h) Litigation; Compliance with Laws................ 22
(i) Absence of Certain Changes or
Events.......................................... 23
(j) Environmental Matters........................... 23
(k) Intellectual Property........................... 24
(l) Rights Agreement................................ 25
(m) Brokers or Finders.............................. 25
(n) Opinion of Xxxx-XxXxx Financial
Advisor......................................... 26
(o) Accounting Matters.............................. 26
(p) Taxes........................................... 26
(q) Certain Contracts............................... 26
(r) Employee Benefits............................... 27
(s) Labor Matters................................... 28
(t) Ownership of Oryx Common Stock.................. 28
3.2 Representations and Warranties of Oryx................... 28
(a) Organization, Standing and Power;
Subsidiaries.................................... 28
(b) Capital Structure............................... 29
(c) Authority; No Conflicts......................... 31
(d) Reports and Financial Statements................ 32
(e) Information Supplied............................ 32
(f) Board Approval.................................. 33
(g) Vote Required................................... 33
(h) Litigation; Compliance with Laws................ 34
(i) Absence of Certain Changes or
Events.......................................... 34
(j) Environmental Matters........................... 34
(k) Intellectual Property........................... 35
(l) Rights Agreement................................ 35
(m) Brokers or Finders.............................. 35
(n) Opinion of Oryx Financial Advisor............... 36
(o) Accounting Matters.............................. 36
(p) Taxes........................................... 36
(q) Certain Contracts............................... 36
(r) Employee Benefits............................... 36
(s) Labor Matters................................... 37
(t) Ownership of Xxxx-XxXxx Common
Stock........................................... 38
(u) Devon Stock..................................... 38
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS................... 38
4.1 Covenants of Xxxx-XxXxx.................................. 38
(a) Ordinary Course................................. 38
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(b) Dividends; Changes in Capital Stock............. 39
(c) Issuance of Securities.......................... 39
(d) Governing Documents............................. 39
(e) No Acquisitions................................. 40
(f) No Dispositions................................. 40
(g) Investments; Indebtedness....................... 40
(h) Pooling; Tax-Free Qualification................. 41
(i) Compensation.................................... 41
(j) Accounting Methods; Income Tax
Elections....................................... 41
(k) Certain Agreements.............................. 41
(l) Rights Agreement................................ 41
4.2 Covenants of Oryx........................................ 42
(a) Ordinary Course................................. 42
(b) Dividends; Changes in Capital Stock............. 42
(c) Issuance of Securities.......................... 43
(d) Governing Documents............................. 43
(e) No Acquisitions................................. 43
(f) No Dispositions................................. 43
(g) Investments; Indebtedness....................... 43
(h) Pooling; Tax-Free Qualification................. 44
(i) Compensation.................................... 44
(j) Accounting Methods; Income Tax
Elections....................................... 44
(k) Certain Agreements.............................. 44
(l) Rights Agreement................................ 45
4.3 Governmental Filings..................................... 45
4.4 Control of Other Party's Business........................ 45
ARTICLE V
ADDITIONAL AGREEMENTS................................. 45
5.1 Preparation of Proxy Statement; Stockholders
Meetings................................................. 45
5.2 Access to Information.................................... 48
5.3 Reasonable Best Efforts.................................. 49
5.4 Acquisition Proposals.................................... 51
5.5 Employee Benefits Matters................................ 52
5.6 Fees and Expenses........................................ 55
5.7 Directors' and Officers' Indemnification and
Insurance................................................ 55
5.8 Public Announcements..................................... 56
5.9 Accountant's Letters..................................... 56
5.10 Listing of Shares of Company Common Stock................ 57
5.11 Affiliates............................................... 57
5.12 Oryx Partnership Name.................................... 58
5.13 Reverse Stock Split...................................... 58
5.14 Transition Management.................................... 58
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ARTICLE VI
CONDITIONS PRECEDENT................................. 59
6.1 Conditions to Each Party's Obligation to
Effect the Merger........................................ 59
(a) Stockholder Approval............................ 59
(b) No Injunctions or Restraints,
Illegality...................................... 59
(c) HSR Act......................................... 59
(d) Governmental and Regulatory
Approvals....................................... 59
(e) NYSE Listing.................................... 60
(f) Effectiveness of the Form S-4................... 60
(g) Pooling......................................... 60
(h) Reverse Split................................... 60
6.2 Additional Conditions to Obligations of
Xxxx-XxXxx............................................... 60
(a) Representations and Warranties.................. 61
(b) Performance of Obligations of Oryx
61
(c) Tax Opinion..................................... 61
(d) Rights Agreement................................ 61
6.3 Additional Conditions to Obligations of
Oryx..................................................... 61
(a) Representations and Warranties.................. 61
(b) Performance of Obligations of Xxxx-
XxXxx........................................... 62
(c) Tax Opinion..................................... 62
(d) Rights Agreement................................ 62
ARTICLE VII
TERMINATION AND AMENDMENT.............................. 62
7.1 Termination.............................................. 62
7.2 Effect of Termination.................................... 64
7.3 Amendment................................................ 66
7.4 Extension; Waiver........................................ 66
ARTICLE VIII
GENERAL PROVISIONS.................................. 66
8.1 Non-Survival of Representations, Warranties
and Agreements........................................... 66
8.2 Notices.................................................. 66
8.3 Interpretation........................................... 67
8.4 Counterparts............................................. 67
8.5 Entire Agreement; No Third Party
Beneficiaries............................................ 68
8.6 GOVERNING LAW............................................ 68
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8.7 Severability............................................. 68
8.8 Assignment............................................... 68
8.9 Submission to Jurisdiction; Waivers...................... 69
8.10 Enforcement.............................................. 69
8.11 Definitions.............................................. 69
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LIST OF EXHIBITS
Exhibit Title
1.5 Form of Amended and Restated Certificate of
Incorporation of Surviving Corporation
1.6 Form of By-Laws of Surviving Corporation
1.7 Directors of Surviving Corporation
5.5(e) Actions with respect to Certain Benefit Plans
5.11 Form of Affiliate Letter
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AGREEMENT AND PLAN OF MERGER, dated as of October 14, 1998 (this
"Agreement"), between XXXX-XxXXX CORPORATION, a Delaware corporation ("Xxxx-
XxXxx"), and ORYX ENERGY COMPANY, a Delaware corporation ("Oryx").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Oryx and Xxxx-XxXxx deem it
advisable and in the best interests of each corporation and its
respective stockholders that Oryx and Xxxx-XxXxx engage in a business
combination as peer firms in a merger of equals in order to advance the long-
term strategic business interests of Oryx and Xxxx-XxXxx;
WHEREAS, the combination of Oryx and Xxxx-XxXxx shall be effected by
the terms of this Agreement through a merger as outlined below (the "Merger");
WHEREAS, immediately prior to the Effective Time (as defined in
Section 1.3), Oryx shall effect a reverse stock split (the "Reverse Split") of
its common stock, par value $1.00 per share ("Oryx Common Stock"), as set forth
in Section 1.8;
WHEREAS, the respective Boards of Directors of Oryx and Xxxx-XxXxx
have approved the Merger, upon the terms and subject to the conditions set forth
in this Agreement, pursuant to which each share of Oryx Common Stock issued and
outstanding after giving effect to the Reverse Split and immediately prior to
the Effective Time, other than shares owned or held by Xxxx-XxXxx or Oryx, will
be converted into the right to receive one share of common stock, par value
$1.00 per share, of the Surviving Corporation (as defined in Section 1.1)
("Company Common Stock") as set forth in Section 1.9, and each share of common
stock, par value $1.00 per share, of Xxxx-XxXxx ("Xxxx-XxXxx Common Stock")
issued and outstanding immediately prior to the Effective Time shall remain
issued and outstanding as one share of Company Common Stock;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
promulgated thereunder;
WHEREAS, for accounting purposes, it is intended that the Merger shall
be accounted for as a pooling of interests transaction under United States
generally accepted accounting principles ("GAAP"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement and as a condition of each party's willingness to enter into this
Agreement, Oryx and Xxxx-XxXxx are entering into stock option agreements, dated
as of the date hereof (the "Stock Option Agreements"), pursuant to which, among
other things, Oryx is granting Xxxx-XxXxx an option
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to purchase shares of Oryx Common Stock (the "Oryx Stock Option Agreement") and
Xxxx-XxXxx is granting Oryx an option to purchase shares of Xxxx-XxXxx Common
Stock (the "Xxxx-XxXxx Stock Option Agreement").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and the Stock Option Agreements, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Delaware General Corporation
Law (the "DGCL"), Oryx shall be merged with and into Xxxx-XxXxx at the Effective
Time. Following the Merger, the separate corporate existence of Oryx shall cease
and Xxxx-XxXxx shall continue as the surviving corporation (the "Surviving
Corporation").
1.2 Closing. Subject to the terms and conditions hereof, the
closing of the Merger and the transactions contemplated by this Agreement (the
"Closing") will take place on the second Business Day after the satisfaction or
waiver (subject to applicable law) of the conditions set forth in Article VI
(other than any such conditions which by their terms cannot be satisfied until
the Closing Date, which shall be required to be so satisfied or waived on the
Closing Date), unless another time or date is agreed to in writing by the
parties hereto (the actual time and date of the Closing being referred to herein
as the "Closing Date"). The Closing shall be held at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless
another place is agreed to in writing by the parties hereto.
1.3 Effective Time. At the Closing, the parties shall (i) file a
certificate of merger (the "Certificate of Merger") in such form as is required
by and executed in accordance with the relevant provisions of the DGCL and (ii)
make all other filings or recordings required under the DGCL. The Merger shall
become effective at such time as the Certificate of Merger is duly filed with
the Delaware Secretary of State or at such subsequent time as Xxxx-XxXxx and
Oryx shall agree and as shall be specified in the Certificate of Merger (the
date and time the Merger becomes effective being the "Effective Time").
1.4 Effects of the Merger. At and after the Effective Time, the
Merger will have the effects set forth in the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time all the
property, rights, privileges, powers and franchises of Oryx and Xxxx-XxXxx shall
be vested in the Surviving Corporation, and all debts, liabilities and duties of
Oryx and Xxxx-XxXxx shall become the debts, liabilities and duties of the
Surviving Corporation.
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1.5 Certificate of Incorporation. The certificate of
incorporation of Xxxx-XxXxx, as in effect immediately prior to the Effective
Time, shall be amended and restated as of the Effective Time so as to read in
its entirety in the form set forth as Exhibit 1.5 and, as so amended and
restated, shall be the certificate of incorporation of the Surviving
Corporation, until thereafter changed or amended as provided therein or by
applicable law.
1.6 By-Laws. At the Effective Time, the by-laws in the form
attached as Exhibit 1.6 shall be the amended and restated by-laws of the
Surviving Corporation until thereafter changed or amended as provided therein or
by applicable law.
1.7 Officers and Directors of Surviving Corporation. The
officers of Xxxx-XxXxx as of the Effective Time shall be the officers of the
Surviving Corporation, until the earlier of their resignation or removal or
otherwise ceasing to be an officer or until their respective successors are duly
elected and qualified, as the case may be. The directors of Xxxx-XxXxx as of the
Effective Time shall be the directors of the Surviving Corporation for the
initial terms set forth on Exhibit 1.7 hereto, until the earlier of their
resignation or removal or otherwise ceasing to be a director or until their
respective successors are duly elected and qualified. The Surviving Corporation
will take all action necessary to (i) add to the Board of Directors of the
Surviving Corporation, effective the day following the Effective Time, Xxxxxx X.
Xxxxxx and the four other persons indicated on Exhibit 1.7 hereto who are not
and have not been employees of Oryx or its Subsidiaries and who are serving on
the Oryx Board of Directors immediately prior to the Effective Time (or, if Xx.
Xxxxxx or any such person listed on Exhibit 1.7 hereto shall not be so serving
on the Oryx Board of Directors immediately prior to the Effective Time or shall
otherwise be unable to serve on the Board of Directors of the Surviving
Corporation, Oryx shall be entitled to designate a substitute nominee from among
the Oryx serving directors as of the date hereof, provided that such substitute
nominee is not and has not been an employee of Oryx or its Subsidiaries and is
serving on the Oryx Board of Directors immediately prior to the Effective Time),
in each case for the initial terms set forth on Exhibit 1.7 hereto, and (ii)
cause to be appointed promptly following the Effective Time: Xxxx X. Xxxxxxx as
Chief Executive Officer of the Surviving Corporation and Xxxxxx X. Xxxxxx as
Chairman of the Surviving Corporation.
1.8 Reverse Stock Split. Immediately prior to the Effective
Time, Oryx shall effect the Reverse Split, pursuant to which each share of Oryx
Common Stock issued and outstanding immediately prior to the Reverse Split
shall, by virtue of the Reverse Split and without any action on the part of the
holder thereof, become 0.369 shares (the "Exchange Ratio") of Oryx Common Stock,
subject to Section 2.5.
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1.9 Effect of Merger on Capital Stock.
(a) At the Effective Time by virtue of the Merger and without
any action on the part of the holder thereof, each share of Oryx Common Stock
issued and outstanding after giving effect to the Reverse Split and immediately
prior to the Effective Time (other than shares of Oryx Common Stock owned by
Xxxx-XxXxx or held by Oryx, all of which shall be canceled as provided in
Section 1.9(c)) shall be converted into the right to receive one share of
Company Common Stock (together with any cash in lieu of fractional shares to be
paid pursuant to Section 2.5, the "Merger Consideration").
(b) At the Effective Time by virtue of the Merger and without
any action on the part of the holder thereof, each share of Xxxx-XxXxx Common
Stock issued and outstanding immediately prior to the Effective Time shall
remain outstanding as one share of Company Common Stock.
(c) At the Effective Time by virtue of the Merger and without
any action on the part of the holder thereof, each share of Oryx Common Stock
issued and owned or held by Xxxx-XxXxx or Oryx at the Effective Time shall cease
to be outstanding and shall be canceled and retired and no stock of the
Surviving Corporation or other consideration shall be delivered in exchange
therefor.
1.10 Stock Options.
(a) On or prior to the Reverse Split, Oryx will take all action
necessary such that each Oryx Stock Option (as defined in Section 3.2(b)) that
was granted pursuant to the Oryx Stock Option Plans (as defined in Section
3.2(b)) prior to the Reverse Split and which remains outstanding immediately
prior to the Effective Time shall cease to represent a right to acquire shares
of Oryx Common Stock and shall be converted, at the Effective Time, into an
option to acquire, on the same terms and conditions as were applicable under the
Oryx Stock Option, that number of shares of Company Common Stock determined by
multiplying the number of shares of Oryx Common Stock subject to such Oryx Stock
Option by the Exchange Ratio, rounded, if necessary, to the nearest whole share
of Company Common Stock, at a price per share (rounded to the nearest one-
hundredth of a cent) equal to the per share exercise price specified in such
Oryx Stock Option divided by the Exchange Ratio; provided, however, that in the
case of any Oryx Stock Option to which Section 421 of the Code applies by reason
of its qualification under Section 422 of the Code, the option price, the number
of shares subject to such option and the terms and conditions of exercise of
such option shall be determined in a manner consistent with the requirements of
Section 424(a) of the Code. On or prior to the Reverse Split, Oryx will amend
the Oryx Stock Options and the Oryx Stock Option Plans to give effect to this
Section 1.10 and Section 5.5 and to make such changes in phraseology
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and form to give effect to the Reverse Split and the Merger and to the
substitution of the Surviving Corporation for Oryx and Company Common Stock
for Oryx Common Stock.
(b) As soon as practicable after the Effective Time, the
Surviving Corporation shall deliver to the holders of Oryx Stock Options
appropriate notices setting forth such holders' rights pursuant to the Oryx
Stock Option Plans (including, as applicable, that, by virtue of the Merger and
pursuant to the terms of the Oryx Stock Option Plans, the Oryx Stock Options
have become fully vested and exercisable) and the agreements evidencing the
grants of such Oryx Stock Options shall continue in effect on the same terms and
conditions (subject to the adjustments required by this Section 1.10 after
giving effect to the Reverse Split and the Merger and the terms of the Oryx
Stock Option Plans). To the extent permitted by law, the Surviving Corporation
shall comply with the terms of the Oryx Stock Option Plans and shall take such
reasonable steps as are necessary or required by, and subject to the provisions
of, such Oryx Stock Option Plans, to have the Oryx Stock Options which qualified
as incentive stock options prior to the Effective Time continue to qualify as
incentive stock options of the Surviving Corporation after the Effective Time.
(c) The Surviving Corporation shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of Company
Common Stock for delivery upon exercise of Oryx Stock Options in accordance with
this Section 1.10. Promptly after the Effective Time, the Surviving Corporation
shall file a registration statement on Form S-3 or Form S-8, as the case may be
(or any successor or other appropriate forms), with respect to the shares of
Company Common Stock subject to such options and shall use commercially
reasonable efforts to maintain the effectiveness of such registration statement
or registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options remain outstanding.
1.11 Certain Adjustments. If, between the date of this Agreement
and the Effective Time, the outstanding Xxxx-XxXxx Common Stock or Oryx Common
Stock shall have been changed into a different number of shares or different
class of stock by reason of any reclassification, recapitalization, stock split,
split-up, combination or exchange of shares, or a stock dividend or dividend
payable in any other securities shall be declared with a record date within such
period, or any similar event shall have occurred (in all cases, other than as
contemplated by Section 1.8), the Exchange Ratio shall be appropriately adjusted
to provide to the holders of Oryx Common Stock and Xxxx-XxXxx Common Stock the
same economic effect as contemplated by this Agreement prior to such event.
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ARTICLE II
EXCHANGE OF CERTIFICATES
2.1 Exchange Fund. Prior to the Effective Time, Xxxx-XxXxx shall
appoint a commercial bank or trust company reasonably acceptable to Oryx having
net capital of not less than $100,000,000, or a subsidiary thereof, to act as
exchange agent hereunder for the purpose of exchanging certificates which
immediately prior to the Effective Time represented shares of Oryx Common Stock
("Certificates") for the Merger Consideration (the "Exchange Agent"). From time
to time as needed, the Surviving Corporation shall deposit with the Exchange
Agent, in trust for the benefit of holders of shares of Oryx Common Stock,
certificates representing the Company Common Stock issuable pursuant to Section
1.9(a) in exchange for shares of Oryx Common Stock outstanding immediately prior
to the Effective Time. The Surviving Corporation shall make available to the
Exchange Agent from time to time, as needed, cash sufficient to pay cash in lieu
of fractional shares pursuant to Section 2.5 and any dividends and other
distributions pursuant to Section 2.3. Any cash and certificates of Company
Common Stock deposited with the Exchange Agent shall hereinafter be referred to
as the "Exchange Fund".
2.2 Exchange and Distribution Procedures. (a) As soon as
reasonably practicable after the Effective Time, the Surviving Corporation shall
cause the Exchange Agent to mail to each holder of a Certificate (i) a letter of
transmittal which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent, and which letter shall be in customary form
and have such other provisions as the Surviving Corporation may reasonably
specify and (ii) instructions for effecting the surrender of such Certificates
in exchange for the applicable Merger Consideration. Upon surrender of a
Certificate to the Exchange Agent together with such letter of transmittal, duly
executed and completed in accordance with the instructions thereto, and such
other documents as may reasonably be required by the Exchange Agent, the holder
of such Certificate shall be entitled to receive in exchange therefor (A) one or
more shares of Company Common Stock representing, in the aggregate, the whole
number of shares that such holder has the right to receive pursuant to Section
1.9(a) (after taking into account all Certificates delivered by such holder) and
(B) any cash and other property that such holder has the right to receive
pursuant to the provisions of this Article II, including any cash in lieu of any
fractional shares pursuant to Section 2.5, and dividends and other distributions
pursuant to Section 2.3. No interest will be paid or will accrue on any cash or
other property payable pursuant to Section 2.3 or 2.5. In the event of a
transfer of ownership of Oryx Common Stock which is not registered in the
transfer records of Oryx, one or more shares of Company Common Stock evidencing,
in the aggregate, the proper number of shares of
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Company Common Stock, any cash in lieu of any fractional shares pursuant to
Section 2.5 and any dividends or other distributions to which such holder is
entitled pursuant to Section 2.3 may be issued and paid with respect to such
Oryx Common Stock free if the Certificate representing such shares of Oryx
Common Stock is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
2.3 Distributions with Respect to Unexchanged Shares. No
dividends or other distributions declared or made with respect to shares of
Company Common Stock with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Certificate with respect to the shares of
Company Common Stock that such holder would be entitled to receive upon
surrender of such Certificate until such holder shall surrender such Certificate
in accordance with Section 2.2. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid to such holder
of shares of Company Common Stock issuable in exchange therefor, without
interest, (a) promptly after the time of such surrender, the amount of dividends
or other distributions with a record date after the Effective Time theretofore
paid with respect to such shares of Company Common Stock, and (b) at the
appropriate payment date, the amount of dividends or other distributions with a
record date after the Effective Time but prior to such surrender and a payment
date subsequent to such surrender payable with respect to such shares of Company
Common Stock.
2.4 No Further Ownership Rights in Oryx Common Stock. All shares
of Company Common Stock issued and cash and other property paid upon conversion
of shares of Oryx Common Stock in accordance with the terms of Article I and
this Article II (including pursuant to Section 2.3) shall be deemed to have been
issued or paid in full satisfaction of all rights pertaining to the shares of
Oryx Common Stock. Until surrendered as contemplated by this Article II, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the Merger Consideration.
2.5 No Fractional Shares.
(a) No certificates or scrip or shares of Oryx Common Stock or
Company Common Stock representing fractional shares of Oryx Common Stock or
Company Common Stock shall be issued pursuant to Section 1.8, 1.9 or 2.2 and
such fractional share interests will not entitle the owner thereof to vote or to
have any rights of a shareholder of Oryx or the Surviving Corporation or a
holder of shares of Oryx Common Stock or Company Common Stock.
(b) Notwithstanding any other provision of this Agreement, each
holder of shares of Oryx Common Stock affected by the Reverse
14
Split and converted pursuant to the Merger who would otherwise have been
entitled to receive a fraction of a share of Company Common Stock (after taking
into account all Certificates delivered by such holder pursuant to Section 2.2)
shall receive, in lieu thereof, cash (without interest) in an amount equal to
the product of (i) such fractional part of a share of Company Common Stock
multiplied by (ii) the closing price for a share of Company Common Stock on the
New York Stock Exchange, Inc. ("NYSE") Composite Transactions Tape on the
Business Day immediately following the date on which the Effective Time occurs.
2.6 Termination of Exchange Fund. Any portion of the Exchange
Fund which remains undistributed to the holders of Certificates for six months
after the Effective Time shall be delivered to the Surviving Corporation or
otherwise on the instruction of the Surviving Corporation, and any holders of
the Certificates who have not theretofore complied with this Article II shall
thereafter look only to the Surviving Corporation for the Merger Consideration
with respect to the shares of Oryx Common Stock formerly represented thereby to
which such holders are entitled pursuant to Section 1.9, 2.2 and 2.5 and any
dividends or distributions with respect to shares of Company Common Stock to
which such holders are entitled pursuant to Section 2.3. Any such portion of the
Exchange Fund remaining unclaimed by holders of shares of Certificates three
years after the Effective Time (or such earlier date immediately prior to such
time as such amounts would otherwise escheat to or become property of any
Governmental Entity (as defined in Section 3.1(c)(iii)) shall, to the extent
permitted by law, become the property of the Surviving Corporation free and
clear of any claims or interest of any Person previously entitled thereto.
2.7 No Liability. None of Xxxx-XxXxx, Oryx, the Surviving
Corporation or the Exchange Agent shall be liable to any Person in respect of
any Merger Consideration from the Exchange Fund delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
2.8 Investment of the Exchange Fund. The Exchange Agent shall
invest any cash included in the Exchange Fund as directed by the Surviving
Corporation on a daily basis. Any interest and other income resulting from such
investments shall promptly be paid to the Surviving Corporation.
2.9 Lost Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the Person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such Person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent will deliver in exchange for such lost,
15
stolen or destroyed Certificate the applicable Merger Consideration with
respect to the shares of Oryx Common Stock formerly represented thereby and
unpaid dividends and distributions on shares of Company Common Stock
deliverable in respect thereof pursuant to this Agreement.
2.10 Withholding Rights. The Surviving Corporation shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of shares of Oryx Common Stock such
amounts as it is required to deduct and withhold with respect to the making of
such payment under the Code and the rules and regulations promulgated
thereunder, or any provision of state, local or foreign tax law. To the extent
that amounts are so withheld by the Surviving Corporation, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the
holder of the shares of Oryx Common Stock in respect of which such deduction and
withholding was made by the Surviving Corporation.
2.11 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Oryx and Xxxx-XxXxx, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of Oryx or Xxxx-XxXxx, any other actions and things to vest,
perfect or confirm of record or otherwise in the Surviving Corporation any and
all right, title and interest in, to and under any of the rights, properties or
assets acquired or to be acquired by the Surviving Corporation as a result of,
or in connection with, the Merger.
2.12 Stock Transfer Books. The stock transfer books of Oryx shall
be closed immediately upon the Effective Time and there shall be no further
registration of transfers of shares of Oryx Common Stock thereafter on the
records of Oryx. On or after the Effective Time, any Certificates presented to
the Exchange Agent or the Surviving Corporation for any reason shall be
converted into the Merger Consideration with respect to the shares of Oryx
Common Stock formerly represented thereby and any dividends or other
distributions to which the holders thereof are entitled pursuant to Section 2.3.
2.13 Affiliates. Notwithstanding anything to the contrary herein,
no shares of Company Common Stock or cash shall be delivered to a Person who may
be deemed an "affiliate" of Oryx in accordance with Section 5.11 hereof for
purposes of Rule 145 under the Securities Act of 1933, as amended (the
"Securities Act"), or for purposes of qualifying the Merger for pooling of
interests accounting treatment under Opinion 16 of the Accounting Principles
Board and applicable rules and regulations of the Securities and Exchange
Commission (the "SEC") until such Person has executed and delivered an Affiliate
Agreement (as defined in Section 5.11) to the Surviving Corporation.
16
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Xxxx-XxXxx. Except as set forth
in the Xxxx-XxXxx Disclosure Schedule delivered by Xxxx-XxXxx to Oryx prior to
the execution of this Agreement (the "Xxxx-XxXxx Disclosure Schedule") (each
section of which qualifies the correspondingly numbered representation and
warranty or covenant to the extent specified therein), and except as disclosed
in the Xxxx-XxXxx SEC Reports (as defined in Section 3.1(d)) filed with the SEC
prior to the date hereof, excluding the exhibits thereto (the "Current Xxxx-
XxXxx SEC Reports"), Xxxx-XxXxx represents and warrants to Oryx as follows:
(a) Organization, Standing and Power; Subsidiaries.
(i) Each of Xxxx-XxXxx and each of its Subsidiaries (as defined in
Section 8.11) is a corporation or other legal entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not reasonably be expected to
have a Material Adverse Effect on Xxxx-XxXxx, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such qualification necessary
other than in such jurisdictions where the failure so to qualify or to be in
good standing would not reasonably be expected to have a Material Adverse Effect
on Xxxx-XxXxx. The copies of the certificate of incorporation and by-laws of
Xxxx-XxXxx which were previously furnished or made available to Oryx are
complete and correct copies of such documents as in effect on the date of this
Agreement.
(ii) Exhibit 21 to Xxxx-XxXxx'x Annual Report on Form 10-K for the
year ended December 31, 1997 includes all the Subsidiaries of Xxxx-XxXxx which
as of the date of this Agreement are Significant Subsidiaries (as defined in
Rule 1-02 of Regulation S-X of the SEC). All the outstanding shares of capital
stock of, or other equity interests in, each such Significant Subsidiary have
been validly issued and are fully paid and nonassessable and are owned directly
or indirectly by Xxxx-XxXxx, free and clear of all pledges, claims, liens,
charges, encumbrances and security interests of any kind or nature whatsoever
(collectively "Liens") and free of any other restriction (including any
restriction on the right to vote, sell or otherwise dispose of such capital
stock or other ownership interests). As of the date of this Agreement, neither
Xxxx-XxXxx nor any of its Subsidiaries
17
directly or indirectly owns any equity or similar interest in, or any
interest convertible into or exchangeable or exercisable for, any other
Person that is or would reasonably be expected to be material to Xxxx-XxXxx
and its Subsidiaries taken as a whole.
(b) Capital Structure.
(i) As of September 30, 1998 (the "Xxxx-XxXxx Measurement
Date"), the authorized capital stock of Xxxx-XxXxx consisted of (A) 150,000,000
shares of Xxxx-XxXxx Common Stock of which 47,407,948 shares were outstanding,
6,768,990 shares were held in the treasury of Xxxx-XxXxx and 1,943,740 shares
were reserved for issuance upon the exercise of the Xxxx-XxXxx Stock Options and
(B) 40,000,000 shares of Preferred Stock, no par value per share, of which no
shares were outstanding and 1,000,000 shares of which have been designated
Series B Junior Participating Preferred Stock and reserved for issuance upon
exercise of the rights (the "Xxxx-XxXxx Rights") distributed to the holders of
Xxxx-XxXxx Common Stock pursuant to the Rights Agreement dated as of July 9,
1996 between Xxxx-XxXxx and Bank One Trust Company, N.A. (as successor by merger
to The Liberty National Bank & Trust Co. of Oklahoma City), as Rights Agent (the
"Xxxx-XxXxx Rights Agreement"). Since the Xxxx-XxXxx Measurement Date to the
date of this Agreement, there have been no issuances of shares of the capital
stock of Xxxx-XxXxx or any other securities of Xxxx-XxXxx other than issuances
of shares (and accompanying Xxxx-XxXxx Rights) pursuant to options or rights
outstanding as of the Xxxx-XxXxx Measurement Date under the Benefit Plans (as
defined in Section 8.11) of Xxxx-XxXxx. All issued and outstanding shares of the
capital stock of Xxxx-XxXxx are duly authorized, validly issued, fully paid and
nonassessable, and no class of capital stock is entitled to preemptive rights.
There were outstanding as of the Xxxx-XxXxx Measurement Date no options,
warrants or other rights to acquire capital stock from Xxxx-XxXxx, directly or
indirectly, other than (x) the Xxxx-XxXxx Rights and (y) options representing in
the aggregate the right to purchase 1,943,740 shares of Xxxx-XxXxx Common Stock
(collectively, the "Xxxx-XxXxx Stock Options") under Xxxx-XxXxx'x 1984 Employee
Stock Option Plan, 1987 Long Term Incentive Plan, Performance Share Plan and
1998 Long Term Incentive Plan (collectively, the "Xxxx-XxXxx Stock Option
Plans"). Section 3.1(b) of the Xxxx-XxXxx Disclosure Schedule sets forth a
complete and correct list, as of the Xxxx-XxXxx Measurement Date, of the number
of shares of Xxxx-XxXxx Common Stock subject to Xxxx-XxXxx Stock Options or
other rights to purchase or receive Xxxx-XxXxx Common Stock granted under the
Xxxx-XxXxx Benefit Plans or otherwise, the dates of grant and the exercise
prices thereof. No options or warrants or other rights to acquire capital stock
from Xxxx-XxXxx have been issued or granted since the Xxxx-XxXxx Measurement
Date to the date of this Agreement, other than pursuant to the Xxxx-XxXxx Stock
Option Agreement.
(ii) No bonds, debentures, notes or other indebtedness of
Xxxx-XxXxx having the right to vote on any matters on which
18
holders of capital stock of Xxxx-XxXxx may vote ("Xxxx-XxXxx Voting Debt")
are issued or outstanding.
(iii) Except as otherwise set forth in this Section 3.1(b) and
as contemplated by Section 1.9 and Section 1.10, as of the date of this
Agreement, there are no securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which Xxxx-
XxXxx or any of its Subsidiaries is a party or by which any of them is bound
obligating Xxxx-XxXxx or any of its Subsidiaries, directly or indirectly, to
issue, deliver or sell, or cause to be issued, delivered or sold, shares of
capital stock or other voting securities of Xxxx-XxXxx or any of its
Subsidiaries or obligating Xxxx-XxXxx or any of its Subsidiaries to issue,
grant, extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. As of the date of this
Agreement, there are no outstanding obligations of Xxxx-XxXxx or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of Xxxx-XxXxx or any of its Subsidiaries.
(c) Authority; No Conflicts.
(i) Xxxx-XxXxx has all requisite corporate power and
authority to enter into this Agreement and the Stock Option Agreements and to
consummate the transactions contemplated hereby and thereby, subject, in the
case of the consummation of the Merger, to the adoption of this Agreement by the
stockholders of Xxxx-XxXxx by the Required Xxxx-XxXxx Vote (as defined in
Section 3.1(g)). The execution and delivery of this Agreement and the Stock
Option Agreements and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the
part of Xxxx-XxXxx, subject, in the case of the consummation of the Merger, to
the adoption of this Agreement by the stockholders of Xxxx-XxXxx by the Required
Xxxx-XxXxx Vote. Each of this Agreement and the Stock Option Agreements has been
duly executed and delivered by Xxxx-XxXxx and constitutes a valid and binding
agreement of Xxxx-XxXxx, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
generally or by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(ii) The execution and delivery of this Agreement and the
Stock Option Agreements by Xxxx-XxXxx does not or will not, as the case may be,
and the consummation by Xxxx-XxXxx of the Merger and the other transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation of, or constitute a default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, amendment, cancellation
or acceleration of any obligation, a right to require redemption or repurchase
of or otherwise "put" securities, or the loss of a
19
material benefit, under, or the creation of a lien, pledge, security interest,
charge or other encumbrance on any assets (any such conflict, violation,
default, right of termination, amendment, cancellation, acceleration, redemption
or repurchase, "put" right, loss or creation, a "Violation") pursuant to: (A)
any provision of the certificate of incorporation or by-laws of Xxxx-XxXxx, or
any similar organizational documents of any material Subsidiary of Xxxx-XxXxx,
or (B) except as would not reasonably be expected to have a Material Adverse
Effect on Xxxx-XxXxx, subject to obtaining or making the consents, approvals,
orders, authorizations, registrations, declarations and filings referred to in
paragraph (iii) below, any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Xxxx-XxXxx or any Subsidiary of
Xxxx-XxXxx or their respective properties or assets.
(iii) No consent, approval, order or authorization
of, or registration, declaration or filing with, any supranational, national,
state, municipal, local or foreign government, any instrumentality,
subdivision, court, administrative agency or commission or other authority
thereof, or any quasi-governmental or private body exercising any regulatory,
taxing, importing or other governmental or quasi-governmental authority (a
"Governmental Entity"), is required by or with respect to Xxxx-XxXxx or any
Subsidiary of Xxxx-XxXxx in connection with the execution and delivery of
this Agreement or the Stock Option Agreements by Xxxx-XxXxx or the
consummation by Xxxx-XxXxx of the Merger and the other transactions
contemplated hereby and thereby, except for those required under or in
relation to (A) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (B) state securities or "blue sky" laws (the "Blue
Sky Laws"), (C) the Securities Act, (D) the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (E) the DGCL with respect to the filing of
the Certificate of Merger, (F) rules and regulations of the NYSE, (G)
antitrust or other competition laws of other jurisdictions, and (H) such
consents, approvals, orders, authorizations, registrations, declarations and
filings the failure of which to make or obtain would not reasonably be
expected to have a Material Adverse Effect on Xxxx-XxXxx. Consents,
approvals, orders, authorizations, registrations, declarations and filings
required under or in relation to any of the foregoing clauses (A) through (G)
are hereinafter referred to as "Necessary Consents".
(d) Reports and Financial Statements.
(i) Xxxx-XxXxx has filed all required
registration statements, prospectuses, reports, schedules, forms, statements
and other documents required to be filed by it with the SEC since January 1,
1997 (collectively, including all exhibits thereto, the "Xxxx-XxXxx SEC
Reports"). Since such date, no Subsidiary of Xxxx-XxXxx has been required to
20
file or has filed any form, report, registration statement, prospectus or other
document with the SEC. None of the Xxxx-XxXxx SEC Reports, as of their
respective dates (and, if amended or superseded by a filing prior to the date of
this Agreement or the Closing Date, then as of the date of such filing),
contained or will contain any untrue statement of a material fact or omitted or
will omit 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. Each of the financial statements (including the related
notes) included in the Xxxx-XxXxx SEC Reports presents fairly, in all material
respects, the consolidated financial position and consolidated results of
operations and cash flows of Xxxx-XxXxx and its Subsidiaries as of the
respective dates or for the respective periods set forth therein, all in
conformity with GAAP consistently applied during the periods involved except as
otherwise noted therein, and subject, in the case of the unaudited interim
financial statements, to normal and recurring year-end adjustments that have not
been and are not expected to be material in amount. All of such Xxxx-XxXxx SEC
Reports, as of their respective dates (and as of the date of any amendment to
the respective Xxxx-XxXxx SEC Report), complied as to form in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act and the rules and regulations promulgated thereunder.
(ii) Since December 31, 1997, Xxxx-XxXxx and its
Subsidiaries have not incurred any liabilities that are of a nature that
would be required to be disclosed on a consolidated balance sheet of Xxxx-XxXxx
and its Subsidiaries or the footnotes thereto prepared in conformity
with GAAP, other than (A) liabilities incurred in the ordinary course of
business or (B) liabilities that would not reasonably be expected to have a
Material Adverse Effect on Xxxx-XxXxx.
(e) Information Supplied.
(i) None of the information supplied or to be
supplied by Xxxx-XxXxx for inclusion or incorporation by reference in (A) the
Form S-4 (as defined in Section 5.1) will, at the time the Form S-4 is filed
with the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (B)
the Joint Proxy Statement/Prospectus (as defined in Section 5.1) will, on the
date it is first mailed to Oryx stockholders or Xxxx-XxXxx stockholders or at
the time of the Oryx Stockholders Meeting or the Xxxx-XxXxx Stockholders
Meeting (each as defined in Section 5.1), contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The portions of
the Form S-4 and the Joint Proxy Statement/Prospectus supplied by Xxxx-XxXxx
21
(whether by inclusion or by incorporation by reference therein) will comply as
to form in all material respects with the requirements of the Exchange Act and
the Securities Act and the rules and regulations of the SEC thereunder.
(ii) Notwithstanding the foregoing provisions of
this Section 3.1(e), no representation or warranty is made by Xxxx-XxXxx with
respect to statements made or incorporated by reference in the Form S-4 or
the Joint Proxy Statement/Prospectus based on information supplied by Oryx
for inclusion or incorporation by reference therein.
(f) Board Approval. The Board of Directors of
Xxxx-XxXxx, by resolutions duly adopted by unanimous vote at a meeting duly
called and held and not subsequently rescinded or modified in any way (the
"Xxxx-XxXxx Board Approval") (except as otherwise permitted following the
date hereof pursuant to Section 5.1 or 5.4), has duly (i) determined that
this Agreement and the Stock Option Agreements, and the Merger and the other
transactions contemplated hereby and thereby, are advisable and are fair to
and in the best interests of Xxxx-XxXxx and its stockholders, (ii) approved
this Agreement and the Stock Option Agreements, and the Merger and the other
transactions contemplated hereby and thereby, (iii) recommended that the
stockholders of Xxxx-XxXxx adopt this Agreement and (iv) directed that this
Agreement and the Merger be submitted for consideration by Xxxx-XxXxx'x
stockholders at the Xxxx-XxXxx Stockholders Meeting. The Xxxx-XxXxx Board
Approval constitutes approval of this Agreement and the Xxxx-XxXxx Stock
Option Agreement, and the Merger and other transactions contemplated hereby
and thereby, for purposes of Section 203 of the DGCL and Article Thirteenth
of Xxxx-XxXxx'x Certificate of Incorporation. To the knowledge of Xxxx-XxXxx,
except for Section 203 of the DGCL (which has been rendered
inapplicable), no state takeover statute is applicable to this Agreement or
the Xxxx-XxXxx Stock Option Agreement or the Merger or the other transactions
contemplated hereby or thereby.
(g) Vote Required. The affirmative vote of the
holders of a majority of the outstanding shares of Xxxx-XxXxx Common Stock
(excluding any shares owned or held by Xxxx-XxXxx or any of its Subsidiaries)
(the "Required Xxxx-XxXxx Vote") is the only vote of the holders of any class
or series of Xxxx-XxXxx capital stock necessary to adopt this Agreement
(assuming that Oryx is not an "interested stockholder" of Xxxx-XxXxx under
Section 203 of the DGCL immediately before the execution and delivery of this
Agreement).
(h) Litigation; Compliance with Laws.
(i) There is no suit, action or proceeding pending
or, to the knowledge of Xxxx-XxXxx, threatened against or affecting Xxxx-XxXxx
or any Subsidiary of Xxxx-XxXxx having, or which would reasonably be
expected to have, a Material Adverse Effect on Xxxx-XxXxx, nor is there any
22
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against Xxxx-XxXxx or any Subsidiary of Xxxx-XxXxx
having, or which reasonably would be expected to have, a Material Adverse Effect
on Xxxx-XxXxx.
(ii) Except as would not reasonably be expected to have a
Material Adverse Effect on Xxxx-XxXxx, Xxxx-XxXxx and its Subsidiaries hold all
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities which are necessary for the operation of the businesses of
Xxxx-XxXxx and its Subsidiaries, taken as a whole (the "Xxxx-XxXxx Permits").
Xxxx-XxXxx and its Subsidiaries are in compliance with the terms of the Xxxx-
XxXxx Permits, except where the failure so to comply would not reasonably be
expected to have a Material Adverse Effect on Xxxx-XxXxx. The businesses of
Xxxx-XxXxx and its Subsidiaries are not being conducted in violation of, and
Xxxx-XxXxx and its Subsidiaries have not received any notices of violations with
respect to, any law, ordinance or regulation of any Governmental Entity, except
for possible violations which would not reasonably be expected to have a
Material Adverse Effect on Xxxx-XxXxx.
(i) Absence of Certain Changes or Events. Except for
liabilities incurred in connection with this Agreement and the Stock Option
Agreements or the transactions contemplated hereby and thereby and except as
permitted by Sections 4.1 and 5.5, since December 31, 1997, Xxxx-XxXxx and its
Subsidiaries have conducted their business only in the ordinary course and there
has not been (i) any change, circumstance or event which has had, or would
reasonably be expected to have, a Material Adverse Effect on Xxxx-XxXxx or (ii)
any action taken by Xxxx-XxXxx or any of its Subsidiaries during the period from
December 31, 1997 through the date of this Agreement that, if taken during the
period from the date of this Agreement through the Effective Time, would
constitute a breach of Section 4.1.
(j) Environmental Matters. Except as would not reasonably be
expected to have a Material Adverse Effect on Xxxx-XxXxx: (i) the operations of
Xxxx-XxXxx and its Subsidiaries have been and are in compliance with all
Environmental Laws and with all licenses required by Environmental Laws (as
defined below), (ii) there are no pending or, to the knowledge of Xxxx-XxXxx,
threatened actions, suits, claims, investigations or other proceedings
(collectively, "Actions") under or pursuant to Environmental Laws against Xxxx-
XxXxx or its Subsidiaries or involving any real property currently or, to the
knowledge of Xxxx-XxXxx, formerly owned, operated or leased by Xxxx-XxXxx or its
Subsidiaries, (iii) Xxxx-XxXxx and its Subsidiaries are not subject to any
Environmental Liabilities (as defined below), and, to the knowledge of Xxxx-
XxXxx, no facts, circumstances or conditions relating to, arising from,
associated with or attributable to any real property currently or formerly
owned, operated or leased by Xxxx-XxXxx or its Subsidiaries or operations
thereon would reasonably be expected to
23
result in Environmental Liabilities and (iv) all real property owned and, to
the knowledge of Xxxx-XxXxx, all real property operated or leased by Xxxx-XxXxx
or its Subsidiaries is free of contamination from Hazardous Material
(as defined below) that would have an adverse effect on human health or the
environment.
As used in this Agreement, "Environmental Laws" means any and all
federal, foreign, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decisions, injunctions, orders, decrees,
requirements of any Governmental Entity, any and all common law requirements,
rules and bases of liability regulating, relating to or imposing liability or
standards of conduct concerning pollution, Hazardous Materials or protection of
human health or safety as relating to the environment or the workplace, or the
protection of the environment, as currently in effect and includes the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901, et seq., the Clean Water Act, 33 U.S.C. Sections 1251, et seq.,
the Clean Air Act, 33 U.S.C. Sections 2601, et seq., the Toxic Substances
Control Act, 15 U.S.C. Sections 2601, et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C., Sections 136, et seq., Occupational
Safety and Health Act 29 U.S.C. Sections 651, et seq. and the Oil Pollution Act
of 1990, 33 U.S.C. Sections 2701, et seq., as such laws have been amended or
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes. As used in this Agreement, "Environmental
Liabilities" with respect to any person means any and all liabilities of or
relating to such person or any of its Subsidiaries (including any entity which
is, in whole or in part, a predecessor of such person or any of such
Subsidiaries), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which (i) arise under or relate to matters covered
by Environmental Laws and (ii) relate to actions occurring or conditions
existing on or prior to the Closing Date. As used in this Agreement, "Hazardous
Materials" means any hazardous or toxic substances, materials or wastes,
defined, listed, classified or regulated as such in or under any Environmental
Laws which includes petroleum, petroleum products, friable asbestos, urea
formaldehyde and polychlorinated biphenyls and any other substance that could
result in liability under any Environmental Laws.
(k) Intellectual Property. Except as would not reasonably be
expected to have a Material Adverse Effect on Xxxx-XxXxx: (a) Xxxx-XxXxx and
each of its Subsidiaries owns, or is licensed to use (in each case, free and
clear of any Liens), all Intellectual Property (as defined below) used in or
necessary for the conduct of its business as currently conducted; (b) the use of
any Intellectual Property by Xxxx-XxXxx and its Subsidiaries does not infringe
on or otherwise violate the rights of any Person and is in accordance with any
applicable license pursuant to which
24
Xxxx-XxXxx or any Subsidiary acquired the right to use any Intellectual
Property; (c) to the knowledge of Xxxx-XxXxx, no Person is challenging,
infringing on or otherwise violating any right of Xxxx-XxXxx or any of its
Subsidiaries with respect to any Intellectual Property owned by and/or
licensed to Xxxx-XxXxx or its Subsidiaries; and (d) neither Xxxx-XxXxx nor
any of its Subsidiaries has received any written notice of any pending claim
with respect to any Intellectual Property used by Xxxx-XxXxx and its
Subsidiaries and to its knowledge no Intellectual Property owned and/or
licensed by Xxxx-XxXxx or its Subsidiaries is being used or enforced in a
manner that would result in the abandonment, cancellation or unenforceability
of such Intellectual Property. For purposes of this Agreement, "Intellectual
Property" shall mean trademarks, service marks, brand names, certification
marks, trade dress and other indications of origin, the goodwill associated
with the foregoing and registrations in any jurisdiction of, and applications
in any jurisdiction to register, the foregoing, including any extension,
modification or renewal of any such registration or application; inventions,
discoveries and ideas, whether patentable or not, in any jurisdiction;
patents, applications for patents (including, without limitation, divisions,
continuations, continuations in part and renewal applications), and any
renewals, extensions or reissues thereof, in any jurisdiction; nonpublic
information, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; writings
and other works, whether copyrightable or not, in any jurisdiction;
registrations or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof; any similar
intellectual property or proprietary rights; and any claims or causes of
action arising out of or relating to any infringement or misappropriation of
any of the foregoing.
(l) Rights Agreement. The Board of Directors of
Xxxx-XxXxx has approved an amendment to the Xxxx-XxXxx Rights Agreement to
the effect that neither Oryx nor any of its affiliates shall become an
"Acquiring Person", and that no "Stock Acquisition Date" or "Distribution
Date" (as such terms are defined in the Xxxx-XxXxx Rights Agreement) will
occur, by reason of the approval, execution or delivery of this Agreement or
the Xxxx-XxXxx Stock Option Agreement or the consummation of the Merger or
the other transactions contemplated hereby or thereby, and will cause the
trustee under the Xxxx-XxXxx Rights Agreement to execute such amendment as
soon as possible after the execution hereof.
(m) Brokers or Finders. No agent, broker,
investment banker, financial advisor or other firm or Person is or will be
entitled to any broker's or finder's fee or any other similar commission or
fee in connection with any of the transactions contemplated by this Agreement
or the Stock Option Agreements based upon arrangements made by or on behalf
of Xxxx-XxXxx, except Xxxxxx Brothers Inc. (the "Xxxx-XxXxx Financial
Advisor"), whose fees and expenses will be paid by Xxxx-XxXxx in accordance
25
with Xxxx-XxXxx'x agreement with such firm, a copy of which has been provided
to Oryx.
(n) Opinion of Xxxx-XxXxx Financial Advisor. Xxxx-XxXxx has
received the opinion of the Xxxx-XxXxx Financial Advisor, dated the date of this
Agreement, to the effect that, as of such date, the Exchange Ratio is fair, from
a financial point of view, to Xxxx-XxXxx, a copy of which opinion will be made
available to Oryx.
(o) Accounting Matters. Neither Xxxx-XxXxx nor any of its
affiliates has taken or agreed to take any action that would prevent Xxxx-XxXxx
from accounting for the Merger as a "pooling of interests". At or prior to the
date hereof, Xxxx-XxXxx has received a letter from its independent public
accountants addressed to Xxxx-XxXxx, with a copy to Oryx, to the effect that,
based upon representations provided by Xxxx-XxXxx and Oryx and a poolability
letter from the independent public accountants of Oryx, accounting for the
Merger as a pooling of interests under Opinion 16 of the Accounting Principles
Board and applicable SEC rules and regulations is appropriate if the Merger is
consummated and closed as contemplated by this Agreement.
(p) Taxes. Each of Xxxx-XxXxx and its Subsidiaries has filed
all Tax Returns required to have been filed (or extensions have been duly
obtained) and has paid all Taxes required to have been paid by it, except where
failure to file such Tax Returns or pay such Taxes would not reasonably be
expected to have a Material Adverse Effect on Xxxx-XxXxx. For purposes of this
Agreement: (i) "Tax" (and, with correlative meaning, "Taxes") means any federal,
state, local or foreign income, gross receipts, property, sales, use, license,
excise, franchise, employment, payroll, withholding, alternative or add on
minimum, ad valorem, transfer or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or penalty, imposed by any governmental authority and
(ii) "Tax Return" means any return, report or similar statement required to be
filed with respect to any Tax (including any attached schedules), including,
without limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
(q) Certain Contracts. As of the date hereof, except as set
forth in the Current Xxxx-XxXxx SEC Reports, neither Xxxx-XxXxx nor any of its
Subsidiaries is a party to or bound by (i) any "material contract" (as such term
is defined in Item 601(b)(10) of Regulation S-K of the SEC) or (ii) any non-
competition agreement or any other agreement or arrangement that limits or
otherwise restricts Xxxx-XxXxx or any of its Subsidiaries or any of their
respective affiliates or any successor thereto or that would, after the
Effective Time, to the knowledge of Xxxx-XxXxx, limit or restrict the Surviving
Corporation or any of its Subsidiaries or any
26
of their respective affiliates or any successor thereto from engaging or
competing in any line of business or in any geographic area.
(r) Employee Benefits.
(i) Except as set forth in Section 3.1(r) of the Xxxx-XxXxx
Disclosure Schedule (together, the "Xxxx-XxXxx Plans"), Xxxx-XxXxx has no
material Benefit Plans. Copies or descriptions of the Xxxx-XxXxx Plans have been
made available to Oryx.
(ii) Each Xxxx-XxXxx Plan has been administered and is in
compliance with the terms of such plan and all applicable laws, rules and
regulations where the failure thereof would result in liability that would be
reasonably expected to have a Material Adverse Effect on Xxxx-XxXxx.
(iii) Each Xxxx-XxXxx Plan intended to be qualified has
received a favorable determination from the Internal Revenue Service and to
Xxxx-XxXxx'x knowledge, nothing has occurred since that would adversely affect
such qualification.
(iv) Except as would not be reasonably expected to have a
Material Adverse Effect on Xxxx-XxXxx: (x) no "reportable event" (as such term
is used in section 4043 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) (other than those events for which the 30-day notice has
been waived pursuant to the regulations) is pending with respect to any Xxxx-
XxXxx Plan, and (ii) no "accumulated funding deficiency" (as such term is used
in section 412 or 4971 of the Code) has occurred during the last 5 years with
respect to any Xxxx-XxXxx Plan.
(v) No litigation or administrative or other proceeding
involving any Xxxx-XxXxx Plans has occurred or, to the Xxxx-XxXxx'x knowledge,
is threatened where an adverse determination would result in liability that
would be reasonably expected to have a Material Adverse Effect on Xxxx-XxXxx.
(vi) Xxxx-XxXxx has not contributed to any "multiemployer
plan" (within the meaning of section 3(37) of ERISA) and neither Xxxx-XxXxx nor
any member of its "Controlled Group" (defined as any organization which is a
member of a controlled group of organizations within the meaning of Code
sections 414(b), (c), (m) or (o)) has incurred any withdrawal liability which
remains unsatisfied in an amount which would result in liability that has had or
would be reasonably expected to have a Material Adverse Effect on Xxxx-XxXxx.
(vii) No Xxxx-XxXxx Plan or multiemployer plan to which the
Xxxx-XxXxx contributed has been terminated where such termination
27
has resulted in liability under Title IV of ERISA that has had or would be
reasonably expected to have a Material Adverse Effect on Xxxx-XxXxx.
(s) Labor Matters. Neither Xxxx-XxXxx nor any of its
Subsidiaries: (i) is a party to or otherwise bound by any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is any such contract or agreement presently being
negotiated, nor is there, nor has there been in the last five years, a
representation question respecting any of the employees of Xxxx-XxXxx or its
Subsidiaries, and, to the knowledge of Xxxx-XxXxx, there are no campaigns being
conducted to solicit cards from employees of Xxxx-XxXxx or its Subsidiaries to
authorize representation by any labor organization; (ii) is a party to, or bound
by, any consent decree with, or citation by, any governmental agency relating to
employees or employment practices which would reasonably be expected to have a
Material Adverse Effect on Xxxx-XxXxx; or (iii) is the subject of any proceeding
asserting that it has committed an unfair labor practice or is seeking to compel
it to bargain with any labor union or labor organization nor, as of the date of
this Agreement, is there pending or, to the knowledge of Xxxx-XxXxx, threatened,
any labor strike, dispute, walkout, work stoppage, slow-down or lockout
involving Xxxx-XxXxx or any of its Subsidiaries which, with respect to any event
described in this clause (iii), would reasonably be expected to have a Material
Adverse Effect on Xxxx-XxXxx.
(t) Ownership of Oryx Common Stock. Neither Xxxx-XxXxx nor
any of its Subsidiaries beneficially owns, directly or indirectly, any Oryx
Common Stock other than pursuant to the Oryx Stock Option Agreement.
3.2 Representations and Warranties of Oryx. Except as set
forth in the Oryx Disclosure Schedule delivered by Oryx to Xxxx-XxXxx prior to
the execution of this Agreement (the "Oryx Disclosure Schedule") (each section
of which qualifies the correspondingly numbered representation and warranty or
covenant to the extent specified therein), and except as disclosed in the Oryx
SEC Reports (as defined in Section 3.2(d)) filed with the SEC prior to the date
hereof, excluding the exhibits thereto (the "Current Oryx SEC Reports"), Oryx
represents and warrants to Xxxx-XxXxx as follows:
(a) Organization, Standing and Power; Subsidiaries.
(i) Each of Oryx and each of its Subsidiaries is a
corporation or other legal entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization,
has the requisite power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, except
28
where the failure to be so organized, existing and in good standing or to
have such power and authority would not reasonably be expected to have a
Material Adverse Effect on Oryx, and is duly qualified and in good standing
to do business in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification necessary
other than in such jurisdictions where the failure so to qualify or to be in
good standing would not reasonably be expected to have a Material Adverse
Effect on Oryx. The copies of the certificate of incorporation and by-laws
of Oryx which were previously furnished or made available to Xxxx-XxXxx are
complete and correct copies of such documents as in effect on the date of
this Agreement.
(ii) Exhibit 21 to Oryx's Annual Report on Form 10-K for the
year ended December 31, 1997 includes all the Subsidiaries of Oryx which as of
the date of this Agreement are Significant Subsidiaries (as defined in Rule 1-02
of Regulation S-X of the SEC). All the outstanding shares of capital stock of,
or other equity interests in, each such Significant Subsidiary have been validly
issued and are fully paid and nonassessable and are owned directly or indirectly
by Oryx, free and clear of all Liens and free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests). Neither Oryx nor any of its
Subsidiaries directly or indirectly owns any equity or similar interest in, or
any interest convertible into or exchangeable or exercisable for, any other
Person that is or would reasonably be expected to be material to Oryx and its
Subsidiaries taken as a whole.
(b) Capital Structure.
(i) As of October 8, 1998 (the "Oryx Measurement Date"), the
authorized capital stock of Oryx consisted of (A) 250,000,000 shares of Oryx
Common Stock, of which 106,233,579 shares were outstanding, 17,468,095 shares
were held in the treasury of Oryx, 3,001,876 shares were held by a Subsidiary of
Oryx, 5,111,438 shares were reserved for issuance upon the conversion of Oryx's
7-1/2% Convertible Subordinated Debentures due May 15, 2014 (the "Oryx
Debentures") and 7,135,302 shares were reserved for issuance upon the exercise
of the Oryx Stock Options or available for grant of other rights to purchase or
receive Oryx Common Stock granted under the Oryx Plans (as defined below), (B)
7,740,606 shares of Cumulative Preference Stock, par value $1.00 per share, none
of which were outstanding and 120,000 shares of which have been designated
Series A Junior Cumulative Preference Stock and reserved for issuance upon
exercise of the rights (the "Oryx Rights") distributed to the holders of Oryx
Common Stock pursuant to the Rights Agreement dated as of September 11, 1990,
between Oryx and Chase Manhattan Bank (as successor by merger to Manufacturers
Hanover Trust Company), as Rights Agent, as amended (the "Oryx Rights
Agreement"), and (C) 15,000,000 shares of Preferred Stock, par value $1.00 per
share, none of
29
which were outstanding, designated or reserved for issuance. Since the Oryx
Measurement Date to the date of this Agreement, there have been no issuances
of shares of the capital stock of Oryx or any other securities of Oryx other
than issuances of shares (and accompanying Oryx Rights) pursuant to options
or rights outstanding as of the Oryx Measurement Date under the Benefit Plans
of Oryx. All issued and outstanding shares of the capital stock of Oryx are
duly authorized, validly issued, fully paid and nonassessable, and no class
of capital stock is entitled to preemptive rights. There were outstanding as
of the Oryx Measurement Date no options, warrants or other rights to acquire
capital stock, directly or indirectly, from Oryx other than (x) the Oryx
Rights, (y) options representing in the aggregate the right to purchase no
more than 2,659,709 (collectively, the "Oryx Stock Options") under Oryx's
Long-Term Incentive Plan, 1992 Long-Term Incentive Plan and 1997 Long-Term
Incentive Plan (collectively, the "Oryx Stock Option Plans") and (z) the Oryx
Debentures. Section 3.2(b) of the Oryx Disclosure Schedule sets forth a
complete and correct list, as of the Oryx Measurement Date, of the number of
shares of Oryx Common Stock subject to Oryx Stock Options or other rights to
purchase or receive Oryx Common Stock granted under the Oryx Benefit Plans or
otherwise, the dates of grant and the exercise prices thereof. No options or
warrants or other rights to acquire capital stock from Oryx have been issued
or granted since the Oryx Measurement Date to the date of this Agreement,
other than pursuant to the Oryx Stock Option Agreement.
(ii) No bonds, debentures, notes or other indebtedness of
Oryx having the right to vote on any matters on which holders of capital stock
may vote ("Oryx Voting Debt") are issued or outstanding.
(iii) Except as otherwise set forth in this Section 3.2(b), as
of the date of this Agreement, there are no securities, options, warrants,
calls, rights, commitments, agreements, arrangements or undertakings of any kind
to which Oryx or any of its Subsidiaries is a party or by which any of them is
bound obligating Oryx or any of its Subsidiaries, directly or indirectly, to
issue, deliver or sell, or cause to be issued, delivered or sold, shares of
capital stock or other voting securities of Oryx or any of its Subsidiaries or
obligating Oryx or any of its Subsidiaries to issue, grant, extend or enter into
any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking. As of the date of this Agreement, there are no
outstanding obligations of Oryx or any of its Subsidiaries to repurchase, redeem
or otherwise acquire any shares of capital stock of Oryx or any of its
Subsidiaries.
(iv) No action, consent or approval by any holder of Oryx
Stock Options or Oryx Debentures is required in connection with the actions
described in Sections 1.10(a) and 5.13.
30
(c) Authority; No Conflicts.
(i) Oryx has all requisite corporate power and authority to
enter into this Agreement and the Stock Option Agreements and to consummate the
transactions contemplated hereby and thereby, subject, in the case of the
consummation of the Reverse Split and the Merger, to the approval of the Reverse
Split and the adoption of this Agreement by the stockholders of Oryx by the
Required Oryx Vote (as defined in Section 3.2(g)). The execution and delivery of
this Agreement and the Stock Option Agreements and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Oryx, subject, in the case of the
consummation of the Reverse Split and the Merger, to the approval of the Reverse
Split and the adoption of this Agreement by the stockholders of Oryx by the
Required Oryx Vote. Each of this Agreement and the Stock Option Agreements has
been duly executed and delivered by Oryx and constitutes a valid and binding
agreement of Oryx, enforceable against it in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditors generally or by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(ii) The execution and delivery of this Agreement and the
Stock Option Agreements by Oryx does not or will not, as the case may be, and
the consummation by Oryx of the Merger and the other transactions contemplated
hereby and thereby will not, result in a Violation of or pursuant to: (A) any
provision of the certificate of incorporation or by-laws of Oryx, or any similar
organizational documents of any material Subsidiary of Oryx, or (B) except as
would not reasonably be expected to have a Material Adverse Effect on Oryx,
subject to obtaining or making the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in paragraph (iii) below,
any loan or credit agreement, note, mortgage, bond, indenture, lease, benefit
plan or other agreement, obligation, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Oryx or any Subsidiary of Oryx or their respective properties or
assets.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to Oryx or any Subsidiary of Oryx in connection with the
execution and delivery of this Agreement or the Stock Option Agreements by Oryx
or the consummation by Oryx of the Merger and the other transactions
contemplated hereby and thereby, except the Necessary Consents and such
consents, approvals, orders, authorizations, registrations, declarations and
filings the failure of which to make or obtain would not reasonably be expected
to have a Material Adverse Effect on Oryx.
31
(d) Reports and Financial Statements.
(i) Each of Oryx and Sun Energy Partners, L.P. ("Oryx
Partnership") has filed all required registration statements, prospectuses,
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC since January 1, 1997 (collectively, including all exhibits
thereto, the "Oryx SEC Reports"). Since such date, no other Subsidiary of Oryx
has been required to file or has filed any form, report, registration statement,
prospectus or other document with the SEC. None of the Oryx SEC Reports, as of
their respective dates (and, if amended or superseded by a filing prior to the
date of this Agreement or the Closing Date, then as of the date of such filing),
contained or will contain any untrue statement of a material fact or omitted or
will omit 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. Each of the financial statements (including the related
notes) included in the Oryx SEC Reports presents fairly, in all material
respects, the consolidated financial position and consolidated results of
operations and cash flows of Oryx or Oryx Partnership, as the case may be, and
its Subsidiaries as of the respective dates or for the respective periods set
forth therein, all in conformity with GAAP consistently applied during the
periods involved except as otherwise noted therein, and subject, in the case of
the unaudited interim financial statements, to normal and recurring year-end
adjustments that have not been and are not expected to be material in amount.
All of such Oryx SEC Reports, as of their respective dates (and as of the date
of any amendment to the respective Oryx SEC Report), complied as to form in all
material respects with the applicable requirements of the Securities Act and the
Exchange Act and the rules and regulations promulgated thereunder.
(ii) Since December 31, 1997, Oryx and its Subsidiaries have
not incurred any liabilities that are of a nature that would be required to be
disclosed on a consolidated balance sheet of Oryx or Oryx Partnership, as the
case may be, and its Subsidiaries or the footnotes thereto prepared in
conformity with GAAP, other than (A) liabilities incurred in the ordinary course
of business or (B) liabilities that would not reasonably be expected to have a
Material Adverse Effect on Oryx.
(e) Information Supplied.
(i) None of the information supplied or to be supplied by
Oryx for inclusion or incorporation by reference in (A) the Form S-4 will, at
the time the Form S-4 is filed with the SEC, at any time it is amended or
supplemented or at the time it becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) the Joint Proxy
32
Statement/Prospectus will, on the date it is first mailed to Oryx stockholders
or Xxxx-XxXxx stockholders or at the time of the Oryx Stockholders Meeting or
the Xxxx-XxXxx Stockholders Meeting, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The portions of the Form S-4 and the
Joint Proxy Statement/Prospectus supplied by Oryx (whether by inclusion or by
incorporation by reference therein) will comply as to form in all material
respects with the requirements of the Exchange Act and the Securities Act and
the rules and regulations of the SEC thereunder.
(ii) Notwithstanding the foregoing provisions of this Section
3.2(e), no representation or warranty is made by Oryx with respect to statements
made or incorporated by reference in the Form S-4 or the Joint Proxy
Statement/Prospectus based on information supplied by Xxxx-XxXxx for inclusion
or incorporation by reference therein.
(f) Board Approval. The Board of Directors of Oryx, by
resolutions duly adopted by unanimous vote at a meeting duly called and held and
not subsequently rescinded or modified in any way (the "Oryx Board Approval")
(except as otherwise permitted following the date hereof pursuant to Section 5.1
or 5.4), has duly (i) determined that this Agreement and the Stock Option
Agreements, and the Merger and other transactions contemplated hereby and
thereby, are advisable and are fair to and in the best interests of Oryx and its
stockholders, (ii) approved this Agreement and the Stock Option Agreements, and
the Merger and other transactions contemplated hereby and thereby, (iii)
recommended that the stockholders of Oryx adopt this Agreement and (iv) directed
that this Agreement and the Merger be submitted for consideration by Oryx's
stockholders at the Oryx Stockholders Meeting. The Oryx Board Approval
constitutes approval of this Agreement and the Oryx Stock Option Agreement, and
the Merger and other transactions contemplated hereby and thereby, for purposes
of Section 203 of the DGCL and Article Sixth of Oryx's Certificate of
Incorporation. To the knowledge of Oryx, except for Section 203 of the DGCL
(which has been rendered inapplicable), no state takeover statute is applicable
to this Agreement or the Oryx Stock Option Agreement, or the Merger or the other
transactions contemplated hereby or thereby.
(g) Vote Required. The affirmative vote of the holders of a
majority of the outstanding shares of Oryx Common Stock (excluding any shares
owned or held by Oryx or any of its Subsidiaries) (the "Required Oryx Vote") is
the only vote of the holders of any class or series of Oryx capital stock
necessary to adopt this Agreement and approve the Reverse Split (assuming that
Xxxx-XxXxx is not an "interested stockholder" of Oryx under Section 203 of the
DGCL immediately before the execution and delivery of this Agreement).
33
(h) Litigation; Compliance with Laws.
(i) There is no suit, action or proceeding pending or, to
the knowledge of Oryx, threatened against or affecting Oryx or any Subsidiary of
Oryx having, or which would reasonably be expected to have, a Material Adverse
Effect on Oryx, nor is there any judgment, decree, injunction, rule or order of
any Governmental Entity or arbitrator outstanding against Oryx or any Subsidiary
of Oryx having, or which reasonably would be expected to have, a Material
Adverse Effect on Oryx.
(ii) Except as would not reasonably be expected to have a
Material Adverse Effect on Oryx, Oryx and its Subsidiaries hold all permits,
licenses, variances, exemptions, orders and approvals of all Governmental
Entities which are necessary for the operation of the businesses of Oryx and its
Subsidiaries, taken as a whole (the "Oryx Permits"). Oryx and its Subsidiaries
are in compliance with the terms of the Oryx Permits, except where the failure
so to comply would not reasonably be expected to have a Material Adverse Effect
on Oryx. The businesses of Oryx and its Subsidiaries are not being conducted in
violation of, and Oryx and its Subsidiaries have not received any notices of
violations with respect to, any law, ordinance or regulation of any Governmental
Entity, except for possible violations which would not reasonably be expected to
have a Material Adverse Effect on Oryx.
(i) Absence of Certain Changes or Events. Except for
liabilities incurred in connection with this Agreement and the Stock Option
Agreements or the transactions contemplated hereby and thereby and except as
permitted by Sections 4.2 and 5.5, since December 31, 1997, Oryx and its
Subsidiaries have conducted their business only in the ordinary course and there
has not been (i) any change, circumstance or event which has had, or would
reasonably be expected to have, a Material Adverse Effect on Oryx or (ii) any
action taken by Oryx or any of its Subsidiaries during the period from December
31, 1997 through the date of this Agreement that, if taken during the period
from the date of this Agreement through the Effective Time, would constitute a
breach of Section 4.2.
(j) Environmental Matters. Except as would not reasonably be
expected to have a Material Adverse Effect on Oryx: (i) the operations of Oryx
and its Subsidiaries have been and are in compliance with all Environmental Laws
and with all licenses required by Environmental Laws (ii) there are no pending
or, to the knowledge of Oryx, threatened Actions under or pursuant to
Environmental Laws against Oryx or its Subsidiaries or involving any real
property currently or, to the knowledge of Oryx, formerly owned, operated or
leased by Oryx or its Subsidiaries, (iii) Oryx and its Subsidiaries are not
subject to any Environmental Liabilities and, to the knowledge of Oryx, no
facts, circumstances or conditions relating to, arising from, associated with or
attributable to any real property currently or
34
formerly owned, operated or leased by Oryx or its Subsidiaries or operations
thereon would reasonably be expected to result in Environmental Liabilities
and (iv) all real property owned and, to the knowledge of Oryx, all real
property operated or leased by Oryx or its Subsidiaries is free of
contamination from Hazardous Material that would have an adverse effect on
human health or the environment.
(k) Intellectual Property. Except as would not reasonably be
expected to have a Material Adverse Effect on Oryx: (a) Oryx and each of its
Subsidiaries owns, or is licensed to use (in each case, free and clear of any
Liens), all Intellectual Property used in or necessary for the conduct of its
business as currently conducted; (b) the use of any Intellectual Property by
Oryx and its Subsidiaries does not infringe on or otherwise violate the rights
of any Person and is in accordance with any applicable license pursuant to which
Oryx or any Subsidiary acquired the right to use any Intellectual Property; (c)
to the knowledge of Oryx, no Person is challenging, infringing on or otherwise
violating any right of Oryx or any of its Subsidiaries with respect to any
Intellectual Property owned by and/or licensed to Oryx or its Subsidiaries; and
(d) neither Oryx nor any of its Subsidiaries has received any written notice of
any pending claim with respect to any Intellectual Property used by Oryx and its
Subsidiaries and to its knowledge no Intellectual Property owned and/or licensed
by Oryx or its Subsidiaries is being used or enforced in a manner that would
result in the abandonment, cancellation or unenforceability of such Intellectual
Property.
(l) Rights Agreement. The Board of Directors of Oryx has
approved an amendment to the Oryx Rights Agreement to the effect that neither
Xxxx-XxXxx nor any of its affiliates shall become an "Acquiring Person" or an
"Adverse Person", and that no "Shares Acquisition Date", "Distribution Date" or
"Triggering Event" (as such terms are defined in the Oryx Rights Agreement) or
any event otherwise specified in Section 11(a)(ii) or 13 of the Rights Agreement
will occur, by reason of the approval, execution or delivery of this Agreement
or the Oryx Stock Option Agreement or the consummation of the Merger or the
other transactions contemplated hereby or thereby, and will cause the trustee
under the Oryx Rights Agreement to execute such amendment as soon as possible
after the execution hereo f.
(m) Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or Person is or will be entitled to any broker's
or finder's fee or any other similar commission or fee in connection with any of
the transactions contemplated by this Agreement or the Stock Option Agreements
based upon arrangements made by or on behalf of Oryx except Xxxxxxx, Sachs & Co.
(the "Oryx Financial Advisor"), whose fees and expenses will be paid by Oryx in
accordance with Oryx's agreement with such firm, a copy of which has been
provided to Xxxx-XxXxx.
35
(n) Opinion of Oryx Financial Advisor. Oryx has received the
opinion of the Oryx Financial Advisor, dated the date of this Agreement, to the
effect that, as of such date, the Exchange Ratio is fair, from a financial point
of view, to the holders of Oryx Common Stock, a copy of which opinion will be
made available to Xxxx-XxXxx.
(o) Accounting Matters. Neither Oryx nor any of its
affiliates has taken or agreed to take any action that would prevent Xxxx-XxXxx
from accounting for the Merger as a "pooling of interests". At or prior to the
date hereof, Oryx has received a letter from its independent public accountants
addressed to Oryx, with a copy to Xxxx-XxXxx and Xxxx-XxXxx'x independent public
accountants, stating that Oryx qualifies as a "combining company" in accordance
with the criteria set forth in Opinion 16 of the Accounting Principles Board and
accordingly is a poolable entity.
(p) Taxes. Each of Oryx and its Subsidiaries has filed all
Tax Returns required to have been filed (or extensions have been duly obtained)
and has paid all Taxes required to have been paid by it, except where failure to
file such Tax Returns or pay such Taxes would not reasonably be expected to have
a Material Adverse Effect on Oryx.
(q) Certain Contracts. As of the date hereof, except as set
forth in the Current Oryx SEC Reports, neither Oryx nor any of its Subsidiaries
is a party to or bound by (i) any "material contract" (as such term is defined
in Item 601(b)(10) of Regulation S-K of the SEC) or (ii) any non-competition
agreement or any other agreement or arrangement that limits or otherwise
restricts Oryx or any of its Subsidiaries or any of their respective affiliates
or any successor thereto or that would, after the Effective Time, to the
knowledge of Oryx, limit or restrict the Surviving Corporation or any of its
Subsidiaries or any of their respective affiliates or any successor thereto,
from engaging or competing in any line of business or in any geographic area.
(r) Employee Benefits.
(i) Except as set forth in Section 3.2(r) of the Oryx
Disclosure Schedule (together, the "Oryx Plans"), Oryx has no material Benefit
Plans. Copies or descriptions of the Oryx Plans have been made available to
Xxxx-XxXxx .
(ii) Each Oryx Plan has been administered and is in
compliance with the terms of such plan and all applicable laws, rules and
regulations where the failure thereof would result in liability that would be
reasonably expected to have a Material Adverse Effect on Oryx.
(iii) Each Oryx Plan intended to be qualified has received a
favorable determination from the Internal Revenue Service and to
36
Oryx's knowledge, nothing has occurred since that would adversely affect such
qualification.
(iv) Except as would not be reasonably expected to have a
Material Adverse Effect on Oryx: (x) no "reportable event" (as such term is used
in section 4043 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) (other than those events for which the 30-day notice has been
waived pursuant to the regulations) is pending with respect to any Oryx Plan,
and (ii) no "accumulated funding deficiency" (as such term is used in section
412 or 4971 of the Code) has occurred during the last 5 years with respect to
any Oryx Plan.
(v) No litigation or administrative or other proceeding
involving any Oryx Plans has occurred or, to the Oryx's knowledge, is threatened
where an adverse determination would result in liability that would be
reasonably expected to have a Material Adverse Effect on Oryx.
(vi) Oryx has not contributed to any "multiemployer plan"
(within the meaning of section 3(37) of ERISA) and neither Oryx nor any member
of its Controlled Group has incurred any withdrawal liability which remains
unsatisfied in an amount which would result in liability that has had or would
be reasonably expected to have a Material Adverse Effect on Oryx.
(vii) No Oryx Plan or multiemployer plan to which the Oryx
contributed has been terminated where such termination has resulted in liability
under Title IV of ERISA that has had or would be reasonably expected to have a
Material Adverse Effect on Oryx.
(s) Labor Matters. Neither Oryx nor any of its Subsidiaries:
(i) is a party to or otherwise bound by any collective bargaining agreement,
contract or other agreement or understanding with a labor union or labor
organization, nor is any such contract or agreement presently being negotiated,
nor is there, nor has there been in the last five years, a representation
question respecting any of the employees of Oryx or its Subsidiaries, and, to
the knowledge of Oryx, there are no campaigns being conducted to solicit cards
from employees of Oryx or its Subsidiaries to authorize representation by any
labor organization; (ii) is a party to, or bound by, any consent decree with, or
citation by, any governmental agency relating to employees or employment
practices which would reasonably be expected to have a Material Adverse Effect
on Oryx; or (iii) is the subject of any proceeding asserting that it has
committed an unfair labor practice or is seeking to compel it to bargain with
any labor union or labor organization nor, as of the date of this Agreement, is
there pending or, to the knowledge of Oryx, threatened, any labor strike,
dispute, walkout, work stoppage, slow-down or lockout involving Oryx or any of
its Subsidiaries which, with respect
37
to any event described in this clause (iii), would reasonably be expected to
have a Material Adverse Effect on Oryx.
(t) Ownership of Xxxx-XxXxx Common Stock. Neither Oryx nor
any of its Subsidiaries beneficially owns, directly or indirectly, any Xxxx-
XxXxx Common Stock other than pursuant to the Xxxx-XxXxx Stock Option Agreement.
(u) Devon Stock. Neither Oryx nor any of its Subsidiaries
beneficially owns, directly or indirectly, or has any rights with respect to the
acquisition of beneficial ownership of, any common stock, par value $0.10 per
share, of Devon Energy Corporation (an Oklahoma corporation) or any other
securities having voting power under ordinary circumstances with respect to
election of directors of Devon Energy Corporation.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 Covenants of Xxxx-XxXxx. During the period from the
date of this Agreement and continuing until the Effective Time, Xxxx-XxXxx
agrees as to itself and its Subsidiaries that (except as expressly contemplated
or permitted by this Agreement or the Xxxx-XxXxx Disclosure Schedule or as
required by a Governmental Entity of competent jurisdiction or to the extent
that Oryx shall otherwise consent in writing, which consent shall not be
unreasonably withheld or delayed):
(a) Ordinary Course.
(i) Xxxx-XxXxx and its Subsidiaries shall carry on their
respective businesses in the usual, regular and ordinary course in all
material respects, in substantially the same manner as heretofore
conducted, and shall use all reasonable efforts to preserve intact their
present lines of business, maintain their rights and franchises and
preserve their relationships with customers, suppliers and others having
business dealings with them to the end that their ongoing businesses shall
not be impaired in any material respect at the Effective Time; provided,
however, that no action by Xxxx-XxXxx or its Subsidiaries with respect to
matters specifically addressed by any other provision of this Section 4.1
shall be deemed a breach of this Section 4.1(a)(i) unless such action would
constitute a breach of one or more of such other provisions.
(ii) Other than in connection with acquisitions permitted by
Section 4.1(e), Xxxx-XxXxx shall not, and shall not
38
permit any of its Subsidiaries to, (A) enter into any new material line of
business or (B) incur or commit to any capital expenditures or any
obligations or liabilities in connection therewith other than capital
expenditures and obligations or liabilities in connection therewith
incurred or committed to in the ordinary course of business consistent with
past practice.
(b) Dividends; Changes in Capital Stock. Xxxx-XxXxx shall
not, and shall not permit any of its Subsidiaries to, and shall not propose
to, (i) declare or pay any dividends on or make other distributions in
respect of any of its capital stock, except (A) the declaration and payment
of regular quarterly cash dividends not in excess of $0.45 per share of
Xxxx-XxXxx Common Stock with usual record and payment dates for such
dividends in accordance with past dividend practice, and (B) for dividends
by wholly owned Subsidiaries of Xxxx-XxXxx, (ii) split, combine or
reclassify any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in
substitution for, shares of its capital stock, except for any such
transaction by a wholly owned Subsidiary of Xxxx-XxXxx which remains a
wholly owned Subsidiary after consummation of such transaction or (iii)
repurchase, redeem or otherwise acquire any shares of its capital stock or
any securities convertible into or exercisable for any shares of its
capital stock.
(c) Issuance of Securities. Xxxx-XxXxx shall not, and shall
not permit any of its Subsidiaries to, issue, deliver or sell, or authorize
or propose the issuance, delivery or sale of, any shares of its capital
stock of any class, any Xxxx-XxXxx Voting Debt or any securities
convertible into or exercisable for, or any rights, warrants or options to
acquire, any such shares or Xxxx-XxXxx Voting Debt, or enter into or modify
any agreement with respect to any of the foregoing, other than (i) the
issuance of Xxxx-XxXxx Common Stock (and the associated Xxxx-XxXxx Rights)
upon the exercise of Xxxx-XxXxx Stock Options or in connection with other
stock-based benefit plans outstanding on the date hereof, in each case in
accordance with their present terms, or as otherwise approved by the Xxxx-
XxXxx Board of Directors in connection with Benefit Plans, (ii) the
granting of Xxxx-XxXxx Stock Options in the ordinary course of business
consistent with past practice or as otherwise approved by the Xxxx-XxXxx
Board of Directors, (iii) issuances by a wholly owned Subsidiary of Xxxx-
XxXxx of capital stock to such Subsidiary's parent, Xxxx-XxXxx or another
wholly owned Subsidiary of Xxxx-XxXxx, or (iv) issuances in accordance with
the Xxxx-XxXxx Rights Agreement.
(d) Governing Documents. Except to the extent required to
comply with its obligations hereunder, Xxxx-XxXxx shall
39
not amend or propose to so amend its certificate of incorporation or by-
laws.
(e) No Acquisitions. Other than acquisitions for cash or
debt (other than debt convertible into or exchangeable for equity
securities) principally in existing or related lines of business of Xxxx-
XxXxx which the Xxxx-XxXxx Board of Directors determines to be in the best
interests of Xxxx-XxXxx, Xxxx-XxXxx shall not, and shall not permit any of
its Subsidiaries to, acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business organization
or division thereof or otherwise acquire or agree to acquire any assets
(other than the acquisition of assets used in the operations of the
business of Xxxx-XxXxx and its Subsidiaries in the ordinary course).
(f) No Dispositions. Other than as may be required by or in
conformance with law or regulation in order to permit or facilitate the
consummation of the transactions contemplated hereby (subject to Section
5.3(a)), Xxxx-XxXxx shall not, and shall not permit any of its Subsidiaries
to, sell, lease, encumber or otherwise dispose of, or agree to sell, lease,
encumber or otherwise dispose of, any of its assets (including capital
stock of Subsidiaries), other than dispositions in the ordinary course of
business consistent with past practice, and dispositions of minority
interests in joint ventures which the Xxxx-XxXxx Board of Directors
determines to be in the best interests of Xxxx-XxXxx.
(g) Investments; Indebtedness. Xxxx-XxXxx shall not, and
shall not permit any of its Subsidiaries to, other than in connection with
actions permitted by Section 4.1(e), (i) make any loans, advances or
capital contributions to, or investments in, any other Person, other than
(x) by Xxxx-XxXxx or a Subsidiary of Xxxx-XxXxx to or in Xxxx-XxXxx or any
wholly owned Subsidiary of Xxxx- XxXxx, (y) pursuant to any contract or
other legal obligation of Xxxx-XxXxx or any of its Subsidiaries existing at
the date of this Agreement or (z) in the ordinary course of business
consistent with past practice or (ii) create, incur, assume or suffer to
exist any indebtedness, issuances of debt securities, guarantees, loans or
advances not in existence as of the date of this Agreement except pursuant
to the credit facilities, indentures and other arrangements in existence on
the date of this Agreement or in the ordinary course of business consistent
with past practice, in each case as such credit facilities, indentures and
other arrangements may be amended,
40
extended, modified, refunded, renewed or refinanced after the date of this
Agreement.
(h) Pooling; Tax-Free Qualification. Xxxx-XxXxx shall use
its reasonable best efforts not to, and shall use its reasonable best
efforts not to permit any of its Subsidiaries to, take any action
(including any action otherwise permitted by this Section 4.1) that would
prevent or impede the Merger from qualifying as a "pooling of interests"
for accounting purposes or as a "reorganization" under Section 368 of the
Code.
(i) Compensation. Other than as contemplated by Section
4.1(c) or as otherwise approved by the Xxxx-XxXxx Board of Directors, Xxxx-
XxXxx shall not increase the amount or change the nature of compensation of
any director or executive officer except in the ordinary course of business
consistent with past practice or as required by an existing agreement, make
any increase in or commitment to increase any employee benefits, issue any
additional Xxxx-XxXxx Stock Options, adopt or make any commitment to adopt
any additional employee benefit plan or make any contribution, other than
regularly scheduled contributions, to any Xxxx-XxXxx Benefit Plan.
(j) Accounting Methods; Income Tax Elections. Xxxx-XxXxx
shall not change its methods of accounting in effect at December 31, 1997,
except as required by changes in GAAP as concurred in by Xxxx-XxXxx'x
independent public accountants. Xxxx-XxXxx shall not (i) change its fiscal
year or (ii) make any material tax election, other than in the ordinary
course of business consistent with past practice.
(k) Certain Agreements. Xxxx-XxXxx shall not, and shall not
permit any of its Subsidiaries to, enter into any agreement, arrangement or
commitment (i) to take any of the foregoing prohibited actions or (ii) that
limits or otherwise restricts Xxxx-XxXxx or any of its Subsidiaries or any
of their respective affiliates or any successor thereto or that could,
after the Effective Time, limit or restrict Xxxx-XxXxx or any of its
Subsidiaries or any of their respective affiliates (including the Surviving
Corporation and its Subsidiaries) or any successor thereto, from engaging
or competing in any line of business or in any geographic area.
(l) Rights Agreement. Xxxx-XxXxx shall not amend, modify or
waive any provision of the Xxxx-XxXxx Rights Agreement, and shall not take
any action to redeem the Xxxx-XxXxx Rights or render the Xxxx-XxXxx Rights
inapplicable to any
41
transaction (other than the transactions contemplated hereby and by the
Xxxx-XxXxx Stock Option Agreement).
4.2 Covenants of Oryx. During the period from the date of
this Agreement and continuing until the Effective Time, Oryx agrees as to itself
and its Subsidiaries that (except as expressly contemplated or permitted by this
Agreement or the Oryx Disclosure Schedule or as required by a Governmental
Entity of competent jurisdiction or to the extent that Xxxx-XxXxx shall
otherwise consent in writing, which consent shall not be unreasonably withheld
or delayed):
(a) Ordinary Course.
(i) Oryx and its Subsidiaries shall carry on their
respective businesses in the usual, regular and ordinary course in all
material respects, in substantially the same manner as heretofore
conducted, and shall use all reasonable efforts to preserve intact their
present lines of business, maintain their rights and franchises and
preserve their relationships with customers, suppliers and others having
business dealings with them to the end that their ongoing businesses shall
not be impaired in any material respect at the Effective Time; provided,
however, that no action by Oryx or its Subsidiaries with respect to matters
specifically addressed by any other provision of this Section 4.2 shall be
deemed a breach of this Section 4.2(a)(i) unless such action would
constitute a breach of one or more of such other provisions.
(ii) Oryx shall not, and shall not permit any of its
Subsidiaries to, (A) enter into any new material line of business or (B)
incur or commit to any capital expenditures or any obligations or
liabilities in connection therewith other than capital expenditures and
obligations or liabilities in connection therewith incurred or committed to
in the ordinary course of business consistent with past practice.
(b) Dividends; Changes in Capital Stock. Oryx shall not,
and shall not permit any of its Subsidiaries to, and shall not propose to,
(i) declare or pay any dividends on or make other distributions in respect
of any of its capital stock, except for dividends by wholly owned
Subsidiaries of Oryx, (ii) split, combine or reclassify any of its capital
stock or issue or authorize or propose the issuance of any other securities
in respect of, in lieu of or in substitution for, shares of its capital
stock, except for any such transaction by a wholly owned Subsidiary of Oryx
which remains a wholly owned Subsidiary after consummation of such
transaction, or (iii) repurchase, redeem or otherwise acquire any
42
shares of its capital stock or any securities convertible into or
exercisable for any shares of its capital stock.
(c) Issuance of Securities. Oryx shall not, and shall not
permit any of its Subsidiaries to, issue, deliver or sell, or authorize or
propose the issuance, delivery or sale of, any shares of its capital stock
of any class, any Oryx Voting Debt or any securities convertible into or
exercisable for, or any rights, warrants or options to acquire, any such
shares or Oryx Voting Debt, or enter into or modify any agreement with
respect to any of the foregoing, other than (i) the issuance of Oryx Common
Stock (and the associated Oryx Rights) upon the exercise of Oryx Stock
Options or in connection with other stock-based benefits plans outstanding
on the date hereof, in each case in accordance with their present terms,
(ii) issuances by a wholly owned Subsidiary of Oryx of capital stock to
such Subsidiary's parent, Oryx or another wholly owned Subsidiary of Oryx,
(iii) issuances upon the conversion of any of the Oryx Debentures in
accordance with their terms, or (iv) issuances in accordance with the Oryx
Rights Agreement.
(d) Governing Documents. Except to the extent required to
comply with its obligations hereunder, Oryx shall not amend or propose to
so amend its certificate of incorporation or by-laws.
(e) No Acquisitions. Oryx shall not, and shall not permit
any of its Subsidiaries to, acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business organization
or division thereof or otherwise acquire or agree to acquire any assets
(other than the acquisition of assets used in the operations of the
business of Oryx and its Subsidiaries in the ordinary course).
(f) No Dispositions. Other than as may be required by or in
conformance with law or regulation in order to permit or facilitate the
consummation of the transactions contemplated hereby (subject to Section
5.3(a)), Oryx shall not, and shall not permit any of its Subsidiaries to,
sell, lease, encumber or otherwise dispose of, or agree to sell, lease,
encumber or otherwise dispose of, any of its assets (including capital
stock of Subsidiaries of Oryx) other than dispositions in the ordinary
course of business consistent with past practice.
(g) Investments; Indebtedness. Oryx shall not, and shall
not permit any of its Subsidiaries to, (i) make any loans,
43
advances or capital contributions to, or investments in, any other Person,
other than (x) by Oryx or a Subsidiary of Oryx to or in Oryx or any wholly
owned Subsidiary of Oryx, (y) pursuant to any contract or other legal
obligation of Oryx or any of its Subsidiaries existing at the date of this
Agreement or (z) in the ordinary course of business consistent with past
practice or (ii) create, incur, assume or suffer to exist any indebtedness,
issuances of debt securities, guarantees, loans or advances not in
existence as of the date of this Agreement except pursuant to the credit
facilities, indentures and other arrangements in existence on the date of
this Agreement or in the ordinary course of business consistent with past
practice, in each case as such credit facilities, indentures and other
arrangements may be amended, extended, modified, refunded, renewed or
refinanced after the date of this Agreement.
(h) Pooling; Tax-Free Qualification. Oryx shall use its
reasonable best efforts not to, and shall use its reasonable best efforts
not to permit any of its Subsidiaries to, take any action (including any
action otherwise permitted by this Section 4.2) that would prevent or
impede the Merger from qualifying as a "pooling of interests" for
accounting purposes or as a "reorganization" under Section 368 of the Code.
(i) Compensation. Oryx shall not increase the amount of
compensation of any director or executive officer except in the ordinary
course of business consistent with past practice or as required by an
existing agreement, make any increase in or commitment to increase any
employee benefits, issue any additional Oryx Stock Options, adopt or make
any commitment to adopt any additional employee benefit plan or make any
contribution, other than regularly scheduled contributions, to any Oryx
Benefit Plan.
(j) Accounting Methods; Income Tax Elections. Oryx shall
not change its methods of accounting in effect at December 31, 1997, except
as required by changes in GAAP as concurred in by Oryx's independent public
accountants. Oryx shall not (i) change its fiscal year or (ii) make any
material tax election, other than in the ordinary course of business
consistent with past practice.
(k) Certain Agreements. Oryx shall not, and shall not
permit any of its Subsidiaries to, enter into any agreement, arrangement or
commitment (i) to take any of the foregoing prohibited actions or (ii) that
limits or otherwise restricts Oryx or any of its Subsidiaries or any of
their respective affiliates or any successor thereto, or that could, after
the Effective Time, limit or restrict Xxxx-XxXxx or any of its Subsidiaries
or any of their respective affiliates (including the Surviving Corporation
and its
44
Subsidiaries) or any successor thereto, from engaging or competing in any
line of business or in any geographic area.
(l) Rights Agreement. Oryx shall not amend, modify or waive
any provision of the Oryx Rights Agreement, and shall not take any action
to redeem the Oryx Rights or render the Oryx Rights inapplicable to any
transaction (other than the transactions contemplated hereby and by the
Oryx Stock Option Agreement) or to designate or change the "Ownership
Limitation" (as defined in the Oryx Rights Agreement) with respect to any
Person.
4.3 Governmental Filings. Each party shall (a) confer on a
regular and frequent basis with the other and (b) report (to the extent
permitted by law or regulation or any applicable confidentiality agreement) on
operational matters. Oryx and Xxxx-XxXxx shall file all reports required to be
filed by each of them with the SEC and all other Governmental Entities between
the date of this Agreement and the Effective Time and shall (to the extent
permitted by law and regulation and any applicable confidentiality agreement)
deliver to the other party copies of all such reports, announcements and
publications promptly after the same are filed.
4.4 Control of Other Party's Business. Nothing contained in
this Agreement shall give Oryx, directly or indirectly, the right to control or
direct Xxxx-XxXxx'x operations prior to the Effective Time. Nothing contained in
this Agreement shall give Xxxx-XxXxx, directly or indirectly, the right to
control or direct Oryx's operations prior to the Effective Time. Prior to the
Effective Time, each of Oryx and Xxxx-XxXxx shall exercise, consistent with the
terms and conditions of this Agreement, complete control and supervision over
its respective operations.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Preparation of Proxy Statement; Stockholders Meetings.
(a) As promptly as reasonably practicable following the date
hereof, Xxxx-XxXxx and Oryx shall prepare and file with the SEC proxy materials
which shall constitute the Joint Proxy Statement/Prospectus (such proxy
statement/prospectus, and any amendments or supplements thereto, the "Joint
Proxy Statement/Prospectus") and Xxxx-XxXxx shall prepare and file a
registration statement on Form S-4 with respect to the issuance of Company
Common Stock in the Merger (the "Form S-4"). The Joint Proxy
Statement/Prospectus will be included in and will constitute a
45
part of the Form S-4 as Xxxx-XxXxx'x prospectus. The Form S-4 and the Joint
Proxy Statement/Prospectus shall comply as to form in all material respects with
the applicable provisions of the Securities Act and the Exchange Act and the
rules and regulations thereunder. Each of Xxxx-XxXxx and Oryx shall use
reasonable best efforts to have the Form S-4 declared effective by the SEC as
promptly as reasonably practicable after filing with the SEC and to keep the
Form S-4 effective as long as is necessary to consummate the Merger and the
other transactions contemplated hereby. Xxxx-XxXxx and Oryx shall, as promptly
as practicable after receipt thereof, provide the other party copies of any
written comments, and advise the other party of any oral comments, with respect
to the Joint Proxy Statement/Prospectus received from the SEC. Xxxx-XxXxx will
provide Oryx with a reasonable opportunity to review and comment on any
amendment or supplement to the Form S-4 prior to filing such with the SEC, and
will provide Oryx with a copy of all such filings made with the SEC.
Notwithstanding any other provision herein to the contrary, no amendment or
supplement (including by incorporation by reference) to the Joint Proxy
Statement/Prospectus or the Form S-4 shall be made without the approval of both
parties, which approval shall not be unreasonably withheld or delayed; provided,
that with respect to documents filed by a party which are incorporated by
reference in the Form S-4 or Joint Proxy Statement/Prospectus, this right of
approval shall apply only with respect to information relating to the other
party or its business, financial condition or results of operations, or this
Agreement, the Stock Option Agreements or the transactions contemplated hereby
or thereby. Xxxx-XxXxx will use reasonable best efforts to cause the Joint Proxy
Statements/Prospectus to be mailed to Xxxx-XxXxx stockholders, and Oryx will use
reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be
mailed to Oryx's stockholders, in each case as promptly as practicable after the
Form S-4 is declared effective under the Securities Act. Xxxx-XxXxx shall also
take any action (other than qualifying to do business in any jurisdiction in
which it is not now so qualified or to file a general consent to service of
process) required to be taken under any applicable state securities laws in
connection with the issuance of shares of Company Common Stock in the Merger and
Oryx shall furnish all information concerning Oryx and the holders of Oryx
Common Stock as may be reasonably requested in connection with any such action.
Each party will advise the other party, promptly after it receives notice
thereof, of the time when the Form S-4 has become effective, the issuance of any
stop order, the suspension of the qualification of the Company Common Stock
issuable in connection with the Merger for offering or sale in any jurisdiction,
or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus
or the Form S-4. If at any time prior to the Effective Time any information
relating to Xxxx-XxXxx or Oryx, or any of their respective affiliates, officers
or directors, should be discovered by Xxxx-XxXxx or Oryx which should be set
forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy
Statement/Prospectus so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of
46
the circumstances under which they were made, not misleading, the party which
discovers such information shall promptly notify the other party hereto and, to
the extent required by law, rule or regulation, an appropriate amendment or
supplement describing such information shall be promptly filed with the SEC and
disseminated to the stockholders of Xxxx-XxXxx and Oryx.
(b) Oryx shall, as promptly as reasonably practicable
following the execution of this Agreement, duly call, give notice of, convene
and hold a meeting of its stockholders (the "Oryx Stockholders Meeting") (which
meeting the parties intend to be held on the same date as the Xxxx-XxXxx
Stockholders Meeting and which shall be held no later than 45 days following the
declaration of effectiveness of the Form S-4) for the purpose of obtaining the
Required Oryx Vote with respect to this Agreement and the Reverse Split and the
Merger (which Oryx shall seek to present as a single, unitary proposal) and
shall take all lawful action to solicit the adoption of this Agreement and
approval of the Reverse Split by the Required Oryx Vote. Unless otherwise
required by their fiduciary duties, the Board of Directors of Oryx shall (i)
recommend adoption of this Agreement and approval of the Reverse Split by the
stockholders of Oryx to the effect as set forth in Section 3.2(f), and (ii) not
withdraw, modify or materially qualify in any manner adverse to Xxxx-XxXxx such
recommendation or take any action or make any statement in connection with the
Oryx Stockholders Meeting materially inconsistent with such recommendation
(collectively, an "Adverse Change in the Oryx Recommendation"); provided the
foregoing shall not prohibit accurate disclosure of factual information
regarding the business, financial condition or results of operations of Xxxx-
XxXxx or Oryx or the fact that an Acquisition Proposal (as defined in Section
5.4) has been made, the identity of the party making such proposal or the
material terms of such proposal to the extent that Oryx determines that such
disclosure is required under applicable law (and no such disclosure shall
constitute an "Adverse Change in the Oryx Recommendation" hereunder). Unless
this Agreement is terminated, Oryx shall be required to take the actions
specified in the first sentence of this Section 5.1(b) whether or not the Oryx
Board of Directors makes an Adverse Change in the Oryx Recommendation after the
date hereof.
(c) Xxxx-XxXxx shall, as promptly as reasonably practicable
following the execution of this Agreement, duly call, give notice of, convene
and hold a meeting of its stockholders (the "Xxxx-XxXxx Stockholders Meeting")
(which meeting the parties intend to be held on the same date as the Oryx
Stockholders Meeting and which shall be held no later than 45 days following the
declaration of effectiveness of the Form S-4) for the purpose of obtaining the
Required Xxxx-XxXxx Vote with respect to this Agreement and the Merger
(including the issuance of Company Common Stock pursuant to the Merger) and
shall take all lawful action to solicit the adoption of this Agreement by the
Required Xxxx-XxXxx Vote. Unless otherwise required by their fiduciary duties,
the Board of Directors of Xxxx-XxXxx shall (i) recommend adoption of this
Agreement by the stockholders of Xxxx-
47
XxXxx to the effect as set forth in Section 3.1(f), and (ii) not withdraw,
modify or materially qualify in any manner adverse to Oryx such recommendation
or take any action or make any statement in connection with the Xxxx-XxXxx
Stockholders Meeting materially inconsistent with such recommendation
(collectively, an "Adverse Change in the Xxxx-XxXxx Recommendation"); provided
the foregoing shall not prohibit accurate disclosure of factual information
regarding the business, financial condition or results of operations of Xxxx-
XxXxx or Oryx or the fact that an Acquisition Proposal has been made, the
identity of the party making such proposal or the material terms of such
proposal to the extent that Xxxx-XxXxx determines that such disclosure is
required under applicable law (and no such disclosure shall constitute an
"Adverse Change in the Xxxx-XxXxx Recommendation" hereunder). Unless this
Agreement is terminated, Xxxx-XxXxx shall be required to take the actions
specified in the first sentence of this Section 5.1(c) whether or not the Xxxx-
XxXxx Board of Directors makes an Adverse Change in the Xxxx-XxXxx
Recommendation after the date hereof.
(d) Nothing in this Section 5.1 shall permit Xxxx-XxXxx or
Oryx to terminate this Agreement or affect any other obligation of Xxxx-XxXxx or
Oryx under this Agreement.
5.2 Access to Information. Upon reasonable notice, each
party shall (and shall cause its Subsidiaries to) afford to the officers,
employees, accountants, counsel, financial advisors and other representatives of
the other party reasonable access during normal business hours, during the
period prior to the Effective Time, to all its properties, books, contracts,
commitments, records, officers and employees and, during such period, such party
shall (and shall cause its Subsidiaries to) furnish promptly to the other party
(a) a copy of each material report, schedule, registration statement and other
document filed, published, announced or received by it during such period
pursuant to the requirements of federal or state securities laws, as applicable
(other than documents which such party is not permitted to disclose under
applicable law, rule or regulation), and (b) consistent with its legal
obligations, all other information concerning it and its business, properties
and personnel as such other party may reasonably request; provided, however,
that either party may restrict the foregoing access to the extent that any law,
rule or regulation of any Governmental Entity applicable to such party or any
confidentiality or similar agreement requires such party or its Subsidiaries to
restrict access to any properties or information. The parties will hold any such
information in confidence to the extent required by, and in accordance with, the
provisions of the letters dated September 18, 1998 between Oryx and Xxxx-XxXxx
(the "Confidentiality Agreements"). Any investigation by Xxxx-XxXxx or Oryx or
any of their representatives shall not affect the representations and warranties
of Oryx or Xxxx-XxXxx, as the case may be.
48
5.3 Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement,
each party will use its reasonable best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the Merger and the
other transactions contemplated by this Agreement as soon as practicable after
the date hereof, including (i) preparing and filing as promptly as practicable
all documentation to effect all necessary applications, notices, petitions,
filings, tax ruling requests and other documents and to obtain as promptly as
practicable all consents, waivers, licenses, orders, registrations, approvals,
permits, tax rulings and authorizations necessary or advisable to be obtained
from any third party and/or any Governmental Entity in order to consummate the
Merger or any of the other transactions contemplated by this Agreement and (ii)
taking all reasonable steps as may be necessary to obtain all such consents,
waivers, licenses, registrations, permits, authorizations, tax rulings, orders
and approvals. In furtherance and not in limitation of the foregoing, each party
hereto agrees to make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act and any other Regulatory Law (as defined below) with
respect to the transactions contemplated hereby as promptly as practicable after
the date hereof and to supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the HSR
Act and any other Regulatory Law and to use its reasonable best efforts to take
all other actions necessary to cause the expiration or termination of the
applicable waiting periods under the HSR Act as soon as practicable. Nothing in
this Section 5.3(a) shall require any of Xxxx-XxXxx and its Subsidiaries or Oryx
and its Subsidiaries to sell, hold separate or otherwise dispose of or conduct
their business in a specified manner, or agree to sell, hold separate or
otherwise dispose of or conduct their business in a specified manner, or permit
the sale, holding separate or other disposition of, any assets of Xxxx-XxXxx,
Oryx or their respective Subsidiaries or the conduct of their business in a
specified manner, whether as a condition to obtaining any approval from a
Governmental Entity or any other Person or for any other reason, if such sale,
holding separate or other disposition or the conduct of their business in a
specified manner is not conditioned on the Closing or would reasonably be
expected to have a Material Adverse Effect on the Surviving Corporation and its
Subsidiaries, taken together, after giving effect to the Merger.
(b) Each of Xxxx-XxXxx and Oryx shall, in connection with
the efforts referenced in Section 5.3(a) to obtain all requisite approvals and
authorizations for the transactions contemplated by this Agreement under the HSR
Act or any other Regulatory Law, use its reasonable best efforts to (i)
cooperate in all respects with each other in connection with any filing or
submission and in connection with any investigation or other inquiry, including
any proceeding initiated by a
49
private party, (ii) promptly inform the other party of any communication
received by such party from, or given by such party to, the Antitrust Division
of the Department of Justice (the "DOJ") or the Federal Trade Commission (the
"FTC") or any other Governmental Entity and of any material communication
received or given in connection with any proceeding by a private party, in each
case regarding any of the transactions contemplated hereby, and (iii) permit the
other party to review any communication given by it to, and consult with each
other in advance of any meeting or conference with, the DOJ, the FTC or any such
other Governmental Entity or, in connection with any proceeding by a private
party, with any other Person, and to the extent permitted by the DOJ, the FTC or
such other applicable Governmental Entity or other Person, give the other party
the opportunity to attend and participate in such meetings and conferences. For
purposes of this Agreement, "Regulatory Law" means the Xxxxxxx Act, as amended,
the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as
amended, and all other federal, state and foreign, if any, statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines and other
laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade or
lessening of competition.
(c) Subject to the terms and conditions of this Agreement,
in furtherance and not in limitation of the covenants of the parties contained
in Sections 5.3(a) and 5.3(b), if any administrative or judicial action or
proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement as violative of any Regulatory Law, each of Xxxx-XxXxx and Oryx shall
cooperate in all respects with each other and use its respective reasonable best
efforts to contest and resist any such action or proceeding and to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or other order,
whether temporary, preliminary or permanent, that is in effect and that
prohibits, prevents or restricts consummation of the transactions contemplated
by this Agreement.
(d) Notwithstanding the foregoing or any other provision of
this Agreement, nothing in Section 5.1 or 5.2 or this Section 5.3 shall limit a
party's right to terminate this Agreement pursuant to Article VII or to take any
actions specifically permitted pursuant to Section 5.4.
(e) If any objections are asserted with respect to the
transactions contemplated hereby under any Regulatory Law or if any suit is
instituted by any Governmental Entity or any private party challenging any of
the transactions contemplated hereby as violative of any Regulatory Law, each of
Xxxx-XxXxx and Oryx shall use its reasonable best efforts to resolve any such
objections or challenge as such Governmental Entity or private party may have to
such transactions under such Regulatory
50
Law so as to permit consummation of the transactions contemplated by this
Agreement.
5.4 Acquisition Proposals. Without limitation on any of
such party's other obligations under this Agreement (including under Article IV
hereof), and except with respect to a transaction specifically permitted under
Section 4.1(e) or (f), each of Xxxx-XxXxx and Oryx agrees that neither it nor
any of its Subsidiaries nor any of its or their officers, employees, directors,
agents or representatives (including any investment banker, attorney or
accountant retained by it or any of its Subsidiaries) will, directly or
indirectly, initiate, solicit or knowingly facilitate (including by way of
furnishing information) any inquiries or the making of any proposal or offer
with respect to a merger, reorganization, share exchange, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving it or any of its Subsidiaries, or any purchase or sale of
the assets (including stock of Subsidiaries) of it or any of its Subsidiaries,
taken as a whole, having an aggregate value equal to 10% or more of the
consolidated asset value of such party, or any purchase or sale of, or tender or
exchange offer for, 10% or more of the equity securities of such party (any such
proposal or offer (other than a proposal or offer made by the other party or an
affiliate thereof) being hereinafter referred to as an "Acquisition Proposal").
Each of Xxxx-XxXxx and Oryx further agrees that neither it nor any of its
Subsidiaries nor any of their officers, employees, directors, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) will, directly or indirectly, have
any discussion with or provide any confidential information or data to any
Person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal, or knowingly facilitate any effort or
attempt to make or implement an Acquisition Proposal or accept an Acquisition
Proposal. Notwithstanding anything herein to the contrary, each of Xxxx-XxXxx
and Oryx or its respective Board of Directors shall be permitted, subject to
Sections 7.1(f) and 7.2: (A) to the extent applicable, to comply with Rule 14d-9
and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition
Proposal; (B) to the extent required by its fiduciary duties, to approve or
recommend or resolve to approve or recommend an Acquisition Proposal or
otherwise make an Adverse Change in the Xxxx-XxXxx Recommendation or an Adverse
Change in the Oryx Recommendation, as the case may be; and (C) engage in any
discussions or negotiations with, or provide any information to, any Person in
response to an unsolicited bona fide written Acquisition Proposal by any such
Person, if and only to the extent that (i) the approval of its stockholders
referred to in Section 3.1(g) or 3.2(g), as the case may be, shall not have been
obtained, (ii) its Board of Directors determines that such Acquisition Proposal
is a Superior Proposal (as defined in Section 8.11), and (iii) prior to
providing any information or data to any Person in connection with an
Acquisition Proposal by any such Person, its Board of Directors receives from
such Person an executed
51
confidentiality agreement containing confidentiality terms at least as favorable
to it as those contained in the relevant Confidentiality Agreement. Each of
Xxxx-XxXxx and Oryx agrees that it will notify the other party promptly of any
inquiries, proposals or offers received by, any such information requested from,
or any such discussions or negotiations sought to be initiated or continued
with, it or any of its representatives with respect to, or which could
reasonably be expected to lead to, an Acquisition Proposal indicating, in
connection with such notice, the name of such Person and the material terms,
conditions and other aspects of any such inquiries, proposals, offers, requests,
discussions or negotiations, including promptly forwarding copies of any written
Acquisition Proposals, and promptly keep the other party informed of the status
and terms of any such proposals or offers and the status and terms of any such
discussions or negotiations. Each of Xxxx-XxXxx and Oryx agrees that it will,
and will cause its officers, employees, directors, agents and representatives
to, immediately cease any activities, discussions or negotiations existing as of
the date of this Agreement with any parties conducted heretofore with respect to
any Acquisition Proposal. Nothing in this Section 5.4 shall permit Xxxx-XxXxx or
Oryx to terminate this Agreement or affect any other obligation of Xxxx-XxXxx or
Oryx under this Agreement. No action taken in respect of a Superior Proposal
which is specifically permitted pursuant to this Section 5.4, including without
limitation any change in recommendation of the Board of Directors of either
Xxxx-XxXxx or Oryx and the public announcement thereof, will constitute a
breach of any other provision hereof.
5.5 Employee Benefits Matters. (a) Except as otherwise
provided in this Section 5.5, (i) each of the Xxxx-XxXxx Plans and Oryx Plans
and other employment arrangements in effect on the date hereof (or as amended or
established in accordance with or as permitted by this Agreement) shall be
maintained in effect by the Surviving Corporation from and after the Effective
Time with respect to the employees, former employees, directors or former
directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries,
respectively, who are covered by such Benefit Plans immediately prior to the
Effective Time, and the Surviving Corporation shall assume as of the Effective
Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time
and perform such Benefit Plan in the same manner and to the same extent that
Oryx would be required to perform thereunder, and (ii) except as may be
expressly provided in a valid written waiver voluntarily signed by an affected
employee, from and after the Effective Time the Surviving Corporation will honor
all Oryx Plans, including all employment, change-in-control, severance,
termination, consulting and unfunded retirement or benefit agreements (including
any obligations arising from the Merger constituting a "change of control" or
"corporate change" thereunder, as applicable), in accordance with the terms
thereof, without offset, deduction, counterclaim, interruption or deferment
(other than offsets, deductions, counterclaims, interruptions or deferments (x)
permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax
52
withholding obligations, or (z) under other applicable law); provided, however,
that, except as provided under applicable law, nothing contained in this Section
5.5(a) shall limit the Surviving Corporation from exercising any reserved right
contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which
Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving
Corporation has after the Effective Time, to amend, modify, suspend, revoke or
terminate any such Benefit Plan. Without limiting the foregoing, (i) each
participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for
purposes of eligibility to participate, vesting and eligibility to receive
benefits (such as higher rates of matching contributions for service after the
Effective Time and eligibility for early retirement) under any Benefit Plan of
the Surviving Corporation or any of its Subsidiaries or affiliates for service
credited for the corresponding purpose under such Benefit Plan made available to
such participant, but not for purposes of benefit accrual under any defined
benefit pension plan unless the participant's accrued benefit liability related
to such service is transferred to such defined benefit pension plan; provided,
however, that such crediting of service shall not operate to cause any such
Benefit Plan to fail to comply with the applicable provisions of the Code and
ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving
Corporation or any of its Subsidiaries or affiliates made available to Oryx
employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving
Corporation will cause such Benefit Plan to provide credit for any co-payments
or deductibles by such employees for the remainder of the coverage period during
which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case
may be, and to waive all pre-existing condition exclusions and waiting periods
that would not have applied to such employees under the applicable Oryx Plan or
Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit
Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop
appropriate employee benefit plans, programs and arrangements, including but not
limited to, executive and incentive compensation, stock option and supplemental
executive retirement plans, for employees and directors of the Surviving
Corporation and its Subsidiaries from and after the Effective Time. However, no
provision contained in this Section 5.5 shall be deemed to constitute an
employment contract between the Surviving Corporation and, or otherwise confer
any rights upon, any individual, or constitute a waiver of the Surviving
Corporation's right to amend, modify, limit or restrict the employment of, or to
discharge, any employee at any time, with or without cause.
(b) During the period from the Effective Time until December 31,
1999, the Surviving Corporation shall maintain or cause to be maintained Benefit
Plans for the benefit of employees, former employees, directors and former
directors of Oryx and its Subsidiaries providing benefits that, in the
aggregate, are substantially comparable to the benefits provided under the Oryx
Plans that are in effect on the date hereof; provided, however, that (i) any
Oryx Plans which are defined benefit pension
53
plans shall be maintained without amendment through December 31, 1999 (other
than amendments required by law) and (ii) except as aforesaid or as provided
under applicable law, nothing herein contained shall limit the Surviving
Corporation from exercising any reserved right contained in any particular
Benefit Plan or any other right which Oryx had prior to the Effective Time, or
which the Surviving Corporation has after the Effective Time, to amend, modify,
suspend, revoke or terminate any such Benefit Plan. During the period from the
Effective Time until December 31, 1999, the Surviving Corporation will not
terminate the employment of any individual who was an employee of Oryx
immediately prior to the Effective Time without providing a minimum of two
weeks' prior written notice to such employee, during which notice period the
individual will be treated as an employee of the Surviving Corporation for
purposes of all Benefit Plans.
(c) The foregoing provisions of this Section 5.5 shall not apply
with respect to any employees or former employees covered by any collective
bargaining agreements.
(d) With respect to Benefit Plans under which Oryx Common Stock
is required to be used for purposes of the payment of benefits, grant of awards
or exercise of options (other than Oryx Stock Option Plans) (each, an "Oryx
Stock Plan"), (i) Oryx shall take such action as may be necessary so that, after
the Effective Time, such Oryx Stock Plan shall provide for the issuance or
purchase in the open market only of Company Common Stock rather than Oryx Common
Stock and otherwise to amend such Oryx Stock Plans to reflect this Agreement,
the Reverse Split, the Exchange Ratio and the Merger, and (ii) the Surviving
Corporation shall (x) reserve for issuance under such Oryx Stock Plan or
otherwise provide a sufficient number of shares of Company Common Stock for
delivery upon payment of benefits, grants of awards or exercise of options under
such Oryx Stock Plan, (y) as soon as practicable after the Effective Time, file
or amend one or more registration statements under the Securities Act with
respect to the shares of Company Common Stock subject to such Oryx Stock Plan to
the extent such filing or amendment is required under applicable law and use its
best efforts to maintain the effectiveness of such registration statement(s)
(and the current status of the prospectuses contained therein or related
thereto) so long as such benefits, grants or awards remain payable or such
options remain outstanding, as the case may be and (z) cause such shares of
Company Common Stock subject to such Oryx Stock Plan to be listed for trading on
the NYSE. Unless otherwise agreed to by the parties, Oryx shall use its
reasonable best efforts to obtain any shareholder approvals that may be
necessary for the deduction of any compensation payable under any Oryx Stock
Plan or other compensation arrangement.
(e) Prior to the Effective Time, each of Xxxx-XxXxx and Oryx
will take the actions set forth in Exhibit 5.5(e) with respect to
54
its Benefit Plans. No such action will constitute a breach of any other
provision hereof.
5.6 Fees and Expenses. Whether or not the Merger is consummated,
all Expenses (as defined below) incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
Expenses, except (a) if the Merger is consummated, the Surviving Corporation
shall pay, or cause to be paid, any and all property or transfer taxes imposed
on Oryx or its Subsidiaries and (b) the SEC filing fee and printer's fees
incurred in connection with the filing, printing and mailing of the Joint Proxy
Statement/Prospectus, which shall be shared equally by Xxxx-XxXxx and Oryx, and
(c) if applicable, as provided in Section 7.2. As used in this Agreement,
"Expenses" includes all out-of-pocket expenses (including, without limitation,
all fees and expenses of counsel, accountants, investment bankers, experts and
consultants to a party hereto and its affiliates) incurred by a party or on its
behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement, the Stock Option
Agreements and the transactions contemplated hereby and thereby, including the
preparation, printing, filing and mailing of the Joint Proxy
Statement/Prospectus and the solicitation of stockholder approvals and all other
matters related to the transactions contemplated hereby.
5.7 Directors' and Officers' Indemnification and Insurance.
(a) The Surviving Corporation shall (i) indemnify
and hold harmless, and provide advancement of expenses to, all past and
present directors, officers and employees of Xxxx-XxXxx, Oryx and their
respective Subsidiaries to the same extent such persons are indemnified or
have the right to advancement of expenses as of the date of this Agreement by
Xxxx-XxXxx, Oryx or their respective Subsidiaries pursuant to Xxxx-XxXxx'x,
Oryx's or such Subsidiary's certificate of incorporation, by-laws or other
constituent documents and indemnification agreements, if any, in existence on
the date hereof with any such directors, officers and employees for acts or
omissions occurring at or prior to the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby); and (ii) cause to be
maintained for a period of six years after the Effective Time the current
policies of directors' and officers' liability insurance and fiduciary
liability insurance maintained by Xxxx-XxXxx, Oryx or their respective
Subsidiaries (provided that the Surviving Corporation (or any successor) may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, no less
advantageous to the insured) with respect to claims arising from facts or
events that occurred on or before the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
55
consummation of the transactions contemplated hereby); provided, however,
that in no event shall the Surviving Corporation be required to expend in any
one year an amount in excess of 200% of the annual premiums currently paid by
Xxxx-XxXxx and Oryx for such insurance; and, provided, further, that if the
annual premiums of such insurance coverage exceed such amount, the Surviving
Corporation shall be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount. In addition, from and after
the Effective Time, directors and officers of Oryx who become directors or
officers of the Surviving Corporation will be entitled to the same indemnity
rights and protections as are afforded to the directors and officers of the
Surviving Corporation.
(b) The provisions of this Section 5.7 (i) are intended to be
for the benefit of, and will be enforceable by, each indemnified party, his or
her heirs and his or her representatives and (ii) are in addition to, and not in
substitution for, any other rights to indemnification or contribution that any
such person may have by contract or otherwise.
5.8 Public Announcements. Xxxx-XxXxx and Oryx shall use
reasonable best efforts to develop a joint communications plan and each party
shall use reasonable best efforts (i) to ensure that all press releases and
other public statements with respect to this Agreement, the Stock Option
Agreements or the transactions contemplated hereby or thereby shall be
consistent with such joint communications plan, and (ii) unless otherwise
required by applicable law or by obligations pursuant to any listing agreement
with or rules of any securities exchange, to consult with each other and provide
each other a reasonable opportunity to review and comment before issuing any
press release or otherwise making any public statement with respect to this
Agreement, the Stock Option Agreements or the transactions contemplated hereby
or thereby. In addition to the foregoing, except to the extent disclosed in or
consistent with the Joint Proxy Statement/Prospectus in accordance with the
provisions of Section 5.1, neither Xxxx-XxXxx nor Oryx shall issue any press
release or otherwise make any public statement or disclosure concerning the
other party or the other party's business, financial condition or results of
operations without the consent of the other party, which consent shall not be
unreasonably withheld or delayed.
5.9 Accountant's Letters. (a) Xxxx-XxXxx shall use reasonable
best efforts to cause to be delivered to Oryx two letters from Xxxx-XxXxx'x
independent public accountants, one dated the date on which the Form S-4 shall
become effective and one dated the Closing Date, each addressed to Xxxx-XxXxx
and Oryx, in form and substance reasonably satisfactory to Oryx and customary in
scope and substance for comfort letters delivered by independent public
accountants in connection with registration statements similar to the Form S-4.
Xxxx-XxXxx shall use reasonable best
56
efforts to cause to be delivered to Oryx a letter from Xxxx-XxXxx'x independent
accountants dated as of the date the Form S-4 is declared effective and as of
the Closing Date, stating that accounting for the Merger as a pooling of
interests under Opinion 16 of the Accounting Principles Board and applicable SEC
rules and regulations is appropriate if the Merger is closed and consummated as
contemplated by this Agreement.
(b) Oryx shall use reasonable best efforts to cause to be
delivered to Xxxx-XxXxx two letters from Oryx's independent public accountants,
one dated the date on which the Form S-4 shall become effective and one dated
the Closing Date, each addressed to Oryx and Xxxx-XxXxx, in form and substance
reasonably satisfactory to Xxxx-XxXxx and customary in scope and substance for
comfort letters delivered by independent public accountants in connection with
registration statements similar to the Form S-4. Oryx shall use reasonable best
efforts to cause to be delivered to Xxxx-XxXxx a letter from Oryx's independent
public accountants, addressed to Oryx and Xxxx-XxXxx, dated as of the date the
Form S-4 is declared effective and as of the Closing Date, stating that stating
that Oryx qualifies as a "combining company" in accordance with the criteria set
forth in Opinion 16 of the Accounting Principles Board and accordingly is a
poolable entity.
(c) Each of Xxxx-XxXxx and Oryx shall use reasonable best
efforts to cause the transactions contemplated by this Agreement, including the
Merger, to be accounted for as a pooling of interests under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations, and such
accounting treatment to be accepted by the SEC.
5.10 Listing of Shares of Company Common Stock. Xxxx-XxXxx shall
use its reasonable best efforts to cause the shares of Company Common Stock to
be issued in the Merger and the shares of Company Common Stock to be reserved
for issuance upon exercise of the Oryx Stock Options and conversion of the Oryx
Debentures to be approved for listing on the NYSE, subject to official notice of
issuance, prior to the Closing Date.
5.11 Affiliates. (a) Not less than 45 days prior to the Effective
Time, Oryx shall deliver to Xxxx-XxXxx a letter identifying all persons who, in
the opinion of Oryx, may be deemed at the time this Agreement is submitted for
adoption by the stockholders of Oryx, "affiliates" of Oryx for purposes of Rule
145 under the Securities Act or for purposes of qualifying the Merger for
pooling of interests accounting treatment under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations, and such list shall
be updated as necessary to reflect changes from the date thereof. Oryx shall use
reasonable best efforts to cause each person identified on such list to deliver
to Xxxx-XxXxx, not less than 30 days prior to the Effective Time, a written
agreement substantially in the form attached as Exhibit 5.11 hereto (an
"Affiliate
57
Agreement"). Not less than 45 days prior to the Effective Time, Xxxx-XxXxx shall
deliver to Oryx a letter identifying all persons who, in the opinion of Xxxx-
XxXxx, may be deemed "affiliates" of Xxxx-XxXxx for purposes of qualifying the
Merger for pooling of interests accounting treatment under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations, and such
list shall be updated as necessary to reflect changes from the date hereof.
Xxxx-XxXxx shall use reasonable best efforts to cause each person identified on
such list to deliver to Oryx not less than 30 days prior to the Effective Time,
a written agreement including the substance of paragraphs (C), (D) and (E) of
Exhibit 5.11 hereto.
(b) The Surviving Corporation shall use its reasonable best
efforts to publish no later than 90 days after the end of the first month after
the Effective Time in which there are at least 30 days of post-Merger combined
operations (which month may be the month in which the Effective Time occurs),
combined sales and net income figures as contemplated by and in accordance with
the terms of SEC Accounting Series Release No. 135.
5.12 Oryx Partnership Name. Prior to the Effective Time, if Xxxx-
XxXxx so requests, Oryx shall take all actions necessary to cause the name of
the Oryx Partnership to be changed to "Xxxx-XxXxx Partners, L.P.", or such other
name as shall be agreed by Xxxx-XxXxx and Oryx, upon the Effective Time.
5.13 Reverse Stock Split. Prior to the Effective Time, Oryx shall
have taken all necessary action to effect the Reverse Split as contemplated
hereby immediately prior to the Effective Time, including taking all necessary
action pursuant to Section 15.05 of the indenture under which the Oryx
Debentures were issued to adjust the conversion rate for the Oryx Debentures
upon and following the Reverse Split to reflect the Exchange Ratio.
5.14 Transition Management.
(a) As soon as practicable after the date of this Agreement, the
parties shall create a special transition management task force (the "Task
Force"), which shall be comprised of Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx and Xxx
X. XxXxxxxx. The Task Force shall examine various alternatives regarding the
manner in which to best organize the business of the Surviving Corporation after
the Effective Time.
(b) As soon as practicable after the date of this Agreement, the
Task Force will develop a plan (the "Plan") with respect to the communications
with the employees of Xxxx-XxXxx and Oryx and their respective Subsidiaries
regarding the transactions contemplated by this Agreement. Notwithstanding any
other provision of this Agreement, prior to the Effective Time, neither Xxxx-
XxXxx nor Oryx will contact or communicate
58
with any employee of the other party or its Subsidiaries with respect to the
transactions contemplated by this Agreement, unless pursuant to the Plan or in
accordance with the authorization of the Task Force. In addition, except
pursuant to the Plan, neither Xxxx-XxXxx nor Oryx will have any communication or
contact with any employee of the other party or its Subsidiaries concerning,
relating to or in any way bearing upon any closing or relocation of or reduction
in size, staff or function of any present facility of the other party. The Plan
will address such topics as the identity of senior management of the Surviving
Corporation (other than as provided elsewhere herein), integration of Xxxx-XxXxx
and Oryx, retention bonuses, short- and long-term plans for the corporate
headquarters, group offices, payroll and benefits administration. Xxxx-XxXxx and
Oryx will cooperate and provide all needed notices under the Worker Adjustment
and Retraining Notification Act and its regulations.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligations of Oryx and Xxxx-XxXxx to effect the Merger are
subject to the satisfaction or waiver on or prior to the Closing Date of the
following conditions:
(a) Stockholder Approval. (i) Oryx shall have obtained the
Required Oryx Vote in connection with the approval of the Reverse Split and
the adoption of this Agreement by the stockholders of Oryx and (ii) Xxxx-
XxXxx shall have obtained the Required Xxxx-XxXxx Vote in connection with
the adoption of this Agreement by the stockholders of Xxxx-XxXxx.
(b) No Injunctions or Restraints, Illegality. No law, rule or
regulation shall have been adopted or promulgated, and no temporary
restraining order, preliminary or permanent injunction or other order,
decree or ruling issued by a court or other Governmental Entity of
competent jurisdiction shall be in effect having the effect of making the
Merger illegal or otherwise prohibiting consummation of the Merger.
(c) HSR Act. The waiting period (and any extension thereof)
applicable to the Merger under the HSR Act shall have been terminated or
shall have expired.
(d) Governmental and Regulatory Approvals. Other than the filing
provided for under Section 1.3 and filings
59
pursuant to the HSR Act (which are addressed in Section 6.1(c)), all
consents, approvals and actions of, filings with and notices to any
Governmental Entity required of Xxxx-XxXxx, Oryx or any of their
Subsidiaries to consummate the Merger and the other transactions
contemplated hereby, the failure of which to be obtained or taken would
reasonably be expected to have a Material Adverse Effect on the Surviving
Corporation and its Subsidiaries, taken together after giving effect to the
Merger, shall have been obtained (for purposes of this Section 6.1(d), the
failure to obtain or make any such consents, approvals, actions, filings or
notices required under state or local Environmental Laws with respect to
Oryx Permits or Xxxx-XxXxx Permits shall not be deemed to have a Material
Adverse Effect on the Surviving Corporation).
(e) NYSE Listing. The shares of Company Common Stock to be
issued in the Merger and such other shares to be reserved for issuance in
connection with the Merger shall have been approved for listing on the
NYSE, subject to official notice of issuance.
(f) Effectiveness of the Form S-4. The Form S-4 shall have been
declared effective by the SEC under the Securities Act. No stop order
suspending the effectiveness of the Form S-4 shall have been issued by the
SEC and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
(g) Pooling. Oryx shall have received and delivered to Xxxx-
XxXxx and Xxxx-XxXxx'x independent public accountants letters from its
independent public accountants, dated as of the date the Form S-4 is
declared effective and as of the Closing Date, stating that Oryx qualifies
as a "combining company" in accordance with the criteria set forth in
Opinion 16 of the Accounting Principles Board and accordingly is a poolable
entity. Xxxx-XxXxx shall have received and delivered to Oryx letters from
its independent public accountants, dated as of the date the Form S-4 is
declared effective and as of the Closing Date, stating that accounting for
the Merger as a pooling of interests under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations is appropriate if
the Merger is closed and consummated as contemplated by this Agreement.
(h) Reverse Split. The Reverse Split shall have been effected on
the terms contemplated hereby immediately prior to the Effective Time.
6.2 Additional Conditions to Obligations of Xxxx-XxXxx. The
obligations of Xxxx-XxXxx to effect the Merger are subject
60
to the satisfaction of, or waiver by Xxxx-XxXxx, on or prior to the Closing Date
of the following additional conditions:
(a) Representations and Warranties. Each of the representations
and warranties of Oryx set forth in this Agreement that is qualified as to
Material Adverse Effect shall be true and correct, and each of the
representations and warranties of Oryx set forth in this Agreement that is
not so qualified shall be true and correct in all material respects, in
each case as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date (except to the extent in either
case that such representations and warranties speak as of another date, in
which case they shall be so true and correct as of such date), and Xxxx-
XxXxx shall have received a certificate of the chief executive officer and
the chief financial officer of Oryx to such effect.
(b) Performance of Obligations of Oryx. Oryx shall have
performed or complied in all material respects with all agreements and
covenants required to be performed by it under this Agreement at or prior
to the Closing Date, and Xxxx-XxXxx shall have received a certificate of
the chief executive officer and the chief financial officer of Oryx to such
effect.
(c) Tax Opinion. Xxxx-XxXxx shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel to Xxxx-XxXxx, on or before the Form S-4 shall
become effective and, subsequently, on the Closing Date, a written opinion
dated as of such dates, based on appropriate representations of Xxxx-XxXxx
and Oryx, to the effect that (i) the Merger will be treated for federal
income tax purposes as a reorganization within the meaning of Section
368(a) of the Code and (ii) Xxxx-XxXxx and Oryx will each be a party to the
reorganization within the meaning of Section 368(b) of the Code.
(d) Rights Agreement. No "Shares Acquisition Date",
"Distribution Date" or "Triggering Event" shall have occurred pursuant to
and as defined in the Oryx Rights Agreement.
6.3 Additional Conditions to Obligations of Oryx. The
obligations of Oryx to effect the Merger are subject to the satisfaction of, or
waiver by Oryx, on or prior to the Closing Date of the following additional
conditions:
(a) Representations and Warranties. Each of the representations
and warranties of Xxxx-XxXxx set forth in this Agreement that is qualified
as to Material Adverse Effect shall be true and correct, and each of the
representations and warranties of Xxxx-XxXxx set forth in this Agreement
that is not so qualified shall
61
be true and correct in all material respects, in each case as of the date
of this Agreement and as of the Closing Date as though made on and as of
the Closing Date (except to the extent in either case that such
representations and warranties speak as of another date, in which case they
shall be so true and correct as of such date), and Oryx shall have received
a certificate of the chief executive officer and the chief financial
officer of Xxxx-XxXxx to such effect.
(b) Performance of Obligations of Xxxx-XxXxx. Xxxx-XxXxx shall
have performed or complied in all material respects with all agreements and
covenants required to be performed by it under this Agreement at or prior
to the Closing Date, and Oryx shall have received a certificate of the
chief executive officer and the chief financial officer of Xxxx-XxXxx to
such effect.
(c) Tax Opinion. Oryx shall have received from Xxxxx, Day,
Xxxxxx & Xxxxx, counsel to Oryx, on or before the Form S-4 shall become
effective and, subsequently, on the Closing Date, a written opinion dated
as of such dates, based on appropriate representations of Xxxx-XxXxx and
Oryx, to the effect that (i) the Merger will be treated for federal income
tax purposes as a reorganization within the meaning of Section 368(a) of
the Code and (ii) Xxxx-XxXxx and Oryx will each be a party to the
reorganization within the meaning of Section 368(b) of the Code.
(d) Rights Agreement. No "Stock Acquisition Date" or
"Distribution Date" shall have occurred pursuant to and as defined in the
Xxxx-XxXxx Rights Agreement.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time, by action taken or authorized by the Board of
Directors of the terminating party or parties, and except as provided below,
whether before or after approval of the matters presented in connection with the
Merger by the stockholders of Oryx or Xxxx-XxXxx:
(a) By mutual written consent of Xxxx-XxXxx and Oryx;
(b) By either Oryx or Xxxx-XxXxx if the Effective Time shall not
have occurred on or before June 30, 1999 (the "Termination Date");
provided, however, that the right to
62
terminate this Agreement under this Section 7.1(b) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
has been the cause of, or resulted in, the failure of the Effective Time to
occur on or before the Termination Date;
(c) By either Oryx or Xxxx-XxXxx if any law, rule or regulation
shall have been adopted or promulgated, or any Governmental Entity shall
have issued an order, decree or ruling or taken any other action which
shall have become final and nonappealable, having the effect of making the
Merger illegal or otherwise prohibiting consummation of the Merger;
provided, however, that the right to terminate this Agreement under this
Section 7.1(c) shall not be available to any party who failed to comply
with Section 5.3 in connection with such action;
(d) By Oryx or Xxxx-XxXxx, prior to receipt of its required
stockholders approval, upon five Business Days' prior notice to the other
party (which notice shall entitle the other party to terminate this
Agreement pursuant to Section 7.1(f)), in order to accept a proposal which
its Board of Directors shall have determined as of the date of such notice
is a Superior Proposal; provided, however, that (i) any financing with
respect thereto is committed for the full amount required, (ii) the
terminating party shall have complied with its obligations under Section
5.4, (iii) such notice shall include a copy of any proposed or definitive
documentation relating to such Superior Proposal, and shall otherwise
indicate all material terms and conditions with respect thereto, (iv) prior
to any such termination, the terminating party shall, if requested by the
other party in connection with a revised proposal by it, negotiate in good
faith for such five Business Day period with the other party, (v) the Board
of Directors of the terminating party shall have determined, as of the
effective date of such termination, after taking into account any revised
proposal by the other party during such five Business Day period, that such
third-party proposal remains a Superior Proposal (and such financing
remains so committed) and (vi) immediately following such termination, the
terminating party enters into definitive and binding documentation with
respect to such Superior Proposal; provided, further, that it shall be a
condition to termination by the terminating party pursuant to this Section
7.1(d) that the terminating party shall have made the payment of the fee to
the other party required by Section 7.2;
(e) By either Oryx or Xxxx-XxXxx if (i) the approval by the
stockholders of Oryx required for the consummation of the Reverse Split or
the Merger shall not have been obtained by reason of the failure to obtain
the Required Oryx Vote or (ii) the approval by the stockholders of Xxxx-
XxXxx required for the
63
consummation of the Merger shall not have been obtained by reason of the
failure to obtain the Required Xxxx-XxXxx Vote, in each case upon the
taking of such vote at a duly held meeting of stockholders of Oryx or Xxxx-
XxXxx, as the case may be, or at any adjournment thereof;
(f) (i) By Oryx if the Board of Directors of Xxxx-XxXxx shall
have effected an Adverse Change in the Xxxx-XxXxx Recommendation (or
resolved to take such action), approved or recommended another Acquisition
Proposal (or resolved to take such action) or failed to reconfirm its
recommendation set forth in Section 3.1(f), if so requested by Xxxx-XxXxx,
within fifteen days following such request and in any event at least ten
days prior to the Oryx Stockholders Meeting, or Xxxx-XxXxx shall have
delivered the notice described in Section 7.1(d) above or breached Section
4.1(l); or
(ii) by Xxxx-XxXxx if the Board of Directors of Oryx shall
have effected an Adverse Change in the Oryx Recommendation (or resolved to
take such action) or shall have approved or recommended another Acquisition
Proposal (or resolved to take such action) or failed to reconfirm its
recommendation set forth in Section 3.2(f), if so requested by Oryx, within
fifteen days following such request, and in any event at least ten days
prior to the Xxxx-XxXxx Stockholders Meeting, or Oryx shall have delivered
the notice described in Section 7.1(d) above or breached Section 4.2(l); or
(g) By Xxxx-XxXxx, if a "Shares Acquisition Date" or "Triggering
Event" shall have occurred pursuant to and as defined in the Oryx Rights
Agreement; or by Oryx, if a "Stock Acquisition Date" shall have occurred
pursuant to and as defined in the Xxxx-XxXxx Rights Agreement.
7.2 Effect of Termination.
(a) In the event of termination of this Agreement by either Oryx
or Xxxx-XxXxx as provided in Section 7.1, this Agreement shall forthwith become
void and there shall be no liability or obligation on the part of Xxxx-XxXxx or
Oryx or their respective officers or directors except with respect to Section
3.1(m), Section 3.2(m), the second sentence of Section 5.2, Section 5.6, this
Section 7.2 and Article VIII, which provisions shall survive such termination,
and except that, notwithstanding anything to the contrary contained in this
Agreement, neither Xxxx-XxXxx nor Oryx shall be relieved or released from any
liabilities or damages arising out of its willful material breach of this
Agreement.
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(b) Xxxx-XxXxx shall pay Oryx the sum $60 million if this
Agreement is terminated solely as follows: (i) by Oryx pursuant to Section
7.1(f) or (g) (which fee shall be payable immediately upon such termination);
(ii) by Xxxx-XxXxx pursuant to Section 7.1(d) (which fee shall be payable as a
condition to such termination); or (iii) by either party pursuant to Section
7.1(e)(ii), if (A) at or at any time prior to such termination, Oryx was
entitled to terminate this Agreement pursuant to Section 7.1(f) (which fee shall
be payable immediately upon such termination) or (B) (x) at any time after the
date of this Agreement and at or before the date of the Xxxx-XxXxx Stockholders
Meeting an Acquisition Proposal with respect to Xxxx-XxXxx shall have been
publicly announced or otherwise publicly communicated (a "Prior Xxxx-XxXxx
Proposal"), and (y) within twelve months of the termination of this Agreement,
Xxxx-XxXxx enters into a definitive agreement with respect to (1) such Prior
Xxxx-XxXxx Proposal or any other Acquisition Proposal (with respect to Xxxx-
XxXxx) with any party who made a Prior Xxxx-XxXxx Proposal or (2) any
Alternative Transaction (as defined in Section 8.11) with respect to Xxxx-XxXxx
with any other Person, and such Prior Xxxx-XxXxx Proposal, Acquisition Proposal
or Alternative Transaction is consummated (which fee shall be payable
immediately upon such consummation).
(c) Oryx shall pay Xxxx-XxXxx the sum $60 million if this
Agreement is terminated solely as follows: (i) by Xxxx-XxXxx pursuant to Section
7.1(f) or (g) (which fee shall be payable immediately upon such termination);
(ii) by Oryx pursuant to Section 7.1(d) (which fee shall be payable as a
condition to such termination); or (iii) by either party pursuant to Section
7.1(e)(i), if (A) at or at any time prior to such termination, Xxxx-XxXxx was
entitled to terminate this Agreement pursuant to Section 7.1(f) (which fee shall
be payable immediately upon such termination) or (B) (x) at any time after the
date of this Agreement and at or before the date of the Oryx Stockholders
Meeting an Acquisition Proposal with respect to Oryx shall have been publicly
announced or otherwise publicly communicated (a "Prior Oryx Proposal"), and (y)
within twelve months of the termination of this Agreement, Oryx enters into a
definitive agreement with respect to (1) such Prior Oryx Proposal or any other
Acquisition Proposal (with respect to Oryx) with any party who made a Prior Oryx
Proposal or (2) any Alternative Transaction with respect to Oryx with any other
Person, and such Prior Oryx Proposal, Acquisition Proposal or Alternative
Transaction is consummated (which fee shall be payable immediately upon such
consummation).
(d) In addition, in any case in which a fee is payable pursuant
to paragraph (b) or (c) above, the party paying such fee shall in addition
promptly pay the other party the sum of $5 million in respect of Expenses
incurred by or on behalf of it in connection with this Agreement and the Stock
Option Agreements, such payment to be made in cash at the time of the payment of
the fee pursuant to paragraph (b) or (c) above.
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7.3 Amendment. This Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors,
at any time before or after approval of the matters presented in connection with
the Merger by the stockholders of Oryx and Xxxx-XxXxx, but, after any such
approval, no amendment shall be made which by law or in accordance with the
rules of any relevant stock exchange requires further approval by such
stockholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
7.4 Extension; Waiver. At any time prior to the Effective Time,
the parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party. The failure of
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations, Warranties and Agreements.
None of the representations, warranties, covenants and other agreements in this
Agreement or in any instrument delivered pursuant to this Agreement, including
any rights arising out of any breach of such representations, warranties,
covenants and other agreements, shall survive the Effective Time, except for
those covenants and agreements contained herein and therein that by their terms
apply or are to be performed in whole or in part after the Effective Time and
this Article VIII.
8.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the tenth Business
Day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
66
(a) if to Xxxx-XxXxx, to
Xxxx-XxXxx Corporation
000 Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) if to Oryx to
Oryx Energy Company
Oryx Energy Center
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
8.3 Interpretation. When a reference is made in this Agreement
to Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation". Inclusion of any matter on any Schedule to this Agreement shall not
be deemed an admission that such item is material or otherwise required to be
included on such Schedule.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more
67
counterparts have been signed by each of the parties and delivered to the other
party, it being understood that both parties need not sign the same counterpart.
8.5 Entire Agreement; No Third Party Beneficiaries.
(a) This Agreement, the Stock Option Agreements and the
Confidentiality Agreements constitute the entire agreement and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(b) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement, other than
Section 5.7 (which is intended to be for the benefit of the Persons covered
thereby and may be enforced by such Persons).
8.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED THEREIN.
8.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
8.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
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8.9 Submission to Jurisdiction; Waivers. Each of Xxxx-XxXxx and
Oryx irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by the other party hereto or its successors or assigns may be brought
and determined in the Chancery or other Courts of the State of Delaware, and
each of Xxxx-XxXxx and Oryx hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect to its property, generally and
unconditionally, to the nonexclusive jurisdiction of the aforesaid courts. Each
of Xxxx-XxXxx and Oryx hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (a) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
other than the failure to lawfully serve process, (b) that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise), and (c) to the fullest extent permitted by applicable law, that (i)
the suit, action or proceeding in any such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper and (iii)
this Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
8.10 Enforcement. 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. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
8.11 Definitions. As used in this Agreement:
(a) "Alternative Transaction" means, with respect to Oryx or
Xxxx-XxXxx, any merger, reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving it or any of its material Subsidiaries, or any purchase or sale of the
assets (including stock of Subsidiaries) of it or any of its Subsidiaries, taken
as a whole, having an aggregate value equal to 25% or more of the consolidated
asset value of such party, or any purchase or sale of, or tender or exchange
offer for, 25% or more of the equity securities of such party.
(b) "beneficial ownership" or "beneficially own" shall have the
meaning under Section 13(d) of the Exchange Act and the rules and regulations
thereunder.
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(c) "Benefit Plans" means, with respect to any Person, each
employee benefit plan, program, arrangement and contract (including, without
limitation, any "employee benefit plan," as defined in Section 3(3) of ERISA and
any bonus, incentive, deferred compensation, stock bonus, stock purchase,
restricted stock, stock option, employment, termination, stay agreement or
bonus, change in control and severance plan, program, arrangement and contract)
in effect on the date of this Agreement or disclosed on the Oryx Disclosure
Schedule or the Xxxx-XxXxx Disclosure Schedule, as the case may be, to which
such Person or its Subsidiary is a party, which is maintained or contributed to
by such Person, or with respect to which such Person could incur material
liability under Section 4069, 4201 or 4212(c) of ERISA.
(d) "Board of Directors" means the Board of Directors of any
specified Person and any committees thereof.
(e) "Business Day" means any day on which banks are not required
or authorized to close in each of New York, New York; Oklahoma City, Oklahoma;
and Dallas, Texas.
(f) "known or "knowledge" means, with respect to any party, the
knowledge of such party's executive officers after reasonable inquiry.
(g) "Material Adverse Effect" means, with respect to any entity,
any change, circumstance or effect that, individually or in the aggregate with
all other changes, circumstances and effects, is or is reasonably likely to be
materially adverse to (i) the business, financial condition or results of
operations of such entity and its Subsidiaries (or, following the Merger, of the
Surviving Corporation and its Subsidiaries) taken as a whole, other than any
change, circumstance or effect relating (x) to the economy or financial markets
in general or (y) in general to the industries in which Xxxx-XxXxx or Oryx
operate and not specifically relating to Xxxx-XxXxx or Oryx or (ii) the ability
of such party to consummate the transactions contemplated by this Agreement or
the Stock Option Agreements.
(h) "the other party" means, with respect to Oryx, Xxxx-XxXxx
and means, with respect to Xxxx-XxXxx, Oryx.
(i) "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the Exchange Act).
(j) "Subsidiary" when used with respect to any party means any
corporation or other organization, whether incorporated or unincorporated, (i)
of which such party or any other Subsidiary of such party is a general partner
or managing member (excluding partnerships, the general
70
partnership interests of which held by such party or any Subsidiary of such
party do not have a majority of the voting interests in such partnership) or
(ii) at least a majority of the securities or other interests of which having by
their terms ordinary voting power to elect a majority of the Board of Directors
or others performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such party or by
any one or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries.
(k) "Superior Proposal" means with respect to Xxxx-XxXxx or
Oryx, as the case may be, a written proposal made by a Person other than either
such party which (I) contemplates (i) a merger, reorganization, consolidation,
share exchange, business combination, recapitalization, liquidation,
dissolution, tender offer, exchange offer or similar transaction involving such
party as a result of which such party's stockholders prior to such transaction
in the aggregate cease to own at least 50% of the voting securities of the
ultimate parent entity resulting from such transaction or (ii) a sale, lease,
exchange, transfer or other disposition (including without limitation a
contribution to a joint venture) of at least 50% of the assets of such party and
its Subsidiaries, taken as a whole, and (II) is on terms which the Board of
Directors of such party determines (after consultation with its financial
advisors and outside counsel), taking into account, among other things, all
legal, financial, regulatory and other aspects of the proposal and the Person
making the proposal, (i) would, if consummated, result in a transaction that is
more favorable, from a financial point of view, to its stockholders (in their
capacities as such) than the transactions contemplated by this Agreement (in the
case of Section 7.1(d), as proposed to be revised) and (ii) is reasonably likely
to be financed and otherwise completed.
______________________________
[Intentionally Left Blank]
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IN WITNESS WHEREOF, Xxxx-XxXxx and Oryx have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXX-XxXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
ORYX ENERGY COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chairman/CEO
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EXHIBIT 1.5
TO THE MERGER AGREEMENT
FORM OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
XXXX-XxXXX CORPORATION
FIRST: The name of the corporation is:
XXXX-XxXXX CORPORATION
SECOND: The registered office of the corporation in the State of
Delaware is located at No. 0000 Xxxxxx Xxxxxx, in the City of Wilmington,
County of New Castle. The name and address of its resident agent is The
Corporation Trust Company, No. 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: (1) The total number of shares of all classes of stock which
the corporation shall have the authority to issue is 340,000,000, of which
40,000,000 shares shall be preferred stock, without par value, and
300,000,000 shall be common stock of the par value of $1.00 per share.
Each holder of common stock, as such, shall be entitled to one vote for
each share of common stock held of record by such holder on all matters on
which stockholders generally are entitled to vote; provided, however, that,
except as otherwise required by law, holders of common stock, as such, shall
not be entitled to vote on any amendment to this certificate of incorporation
(including any certificate of designations relating to any series of
preferred stock) that relates solely to the terms of one or more outstanding
series of preferred stock if the holders of such affected series are
entitled, either separately or together with the holders of one or more other
such series, to vote thereon pursuant to this certificate of incorporation
(including any certificate of designations relating to any series of
preferred stock) or pursuant to the General Corporation Law of the State of
Delaware.
(2) The preferred stock may be issued from time to time in one or more
series. The resolution or resolutions of the Board of Directors providing
for the issue of shares of a particular series shall fix, subject to
applicable laws and provisions of this certificate of incorporation, the
voting power, designation, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions of
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the shares of such series. The authority of the Board of Directors with
respect to each series shall include, but not be limited to, determination of
the following:
i) the number of shares constituting such series, including the authority
to increase or decrease such number, and the distinctive designation
of such series;
ii) the rate of dividends payable on shares of such series, the dates on
which such dividends shall be paid, and whether such dividends shall
be cumulative or noncumulative;
iii) the full or limited voting power, if any, for such series and the
terms and conditions under which such voting power may be exercised;
iv) the right, if any, of the corporation to redeem shares of such series
and the terms and conditions of such redemption;
v) the obligations, if any, of the corporation to retire shares of such
series pursuant to a retirement or sinking fund of a similar nature or
otherwise and the terms and conditions of such obligation;
vi) the terms and conditions, if any, upon which the shares of such series
shall be convertible into shares of stock of any other class or series
including the conversion rate and the term of adjustment thereof, if
any;
vii) the amount which the holders of the shares of such series shall be
entitled to receive in case of a liquidation, dissolution or winding
up of the corporation;
viii) the relative priority of the shares of such series to shares of other
classes or series with respect to dividends or upon the dissolution of
or the distribution of assets of the corporation; and
ix) and other rights and qualifications, preferences and limitations or
restrictions of the shares of such series;
so far as not inconsistent with the provisions of this certificate of
incorporation and to the full extent now or hereafter permitted by the
laws of the State of Delaware.
(3) Except as otherwise provided in this paragraph (3), no direct or
indirect purchase by the corporation from any Interested Stockholder (as
hereinafter defined) of shares of common stock of the corporation beneficially
owned by such Interested Stockholder for less than two years
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prior to the date of such purchase shall be made at a per share price in
excess of Fair Market Value (as hereinafter defined) at the time of such
purchase unless such purchase is approved by the affirmative vote of not less
than a majority of the Voting Stock (as defined in Article THIRTEENTH) held
by Disinterested Stockholders (as hereinafter defined).
The provisions of this paragraph (3) shall not apply to (i) any offer to
purchase made by the corporation which is made on the same terms and
conditions of the holders of all shares of common stock of the corporation,
or (ii) any open market purchases by the corporation of shares of its common
stock at prevailing market prices.
The provisions of this paragraph (3) shall not be amended without the
affirmative vote of (a) not less than a majority of the Voting Stock entitled
to vote thereon and (b) not less than a majority of the Voting Stock entitled
to vote thereon held by Disinterested Stockholders.
For purposes of this paragraph (3); I) the terms "Interested
Stockholder" shall have the meaning of "Related Person" set forth in
paragraph (B)(3) of Article THIRTEENTH except that the percent of Voting
Stock referred to in clauses (a) and (b) of such definition shall be five
percent (5%) rather than ten percent (10%); (ii) the term "Fair Market Value"
shall have the meaning set forth in paragraph (B)(9) of Article THIRTEENTH
except that "Fair Market Value" shall mean the highest sale price or bid
quotation during the five-trading day period preceding the date of the
purchase of the stock; and (iii) the terms "Disinterested Stockholders" means
those holders of the Voting Stock, none of which is an Interested
Stockholder.
(4) Series B Preferred Stock
Section 1. Designation and Amount. There shall be designated a
series of preferred stock as "Series B Junior Participating Preferred Stock"
(the "Series B Preferred Stock") and the number of shares constituting the
Series B Preferred Stock shall be 1,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of shares of Series B Preferred
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the corporation convertible into Series B Preferred
Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
preferred stock of the corporation (the "Preferred Stock") (or any similar
stock) ranking prior and superior to the Series B Preferred Stock with respect
to dividends, the holders of shares of Series B Preferred Stock,
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in preference to the holders of common stock of the corporation (the "Common
Stock") and of any other stock of the corporation ranking junior to the
Series B Preferred Stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of January,
April, July, and October in each year (each such date being referred to
herein as a "Dividend Payment Date"), commencing on the first Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series B Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the -cash dividends or other distributions
other than a dividend payable in shares of Common Stock, declared on the
Common Stock since the immediately preceding Dividend Payment Date or, with
respect to the first Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series B Preferred Stock. In the event the
corporation shall at any time after July 9, 1996 declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The corporation shall declare a dividend or distribution on
the Series B Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend of $1 per share on the Series B
Preferred Stock shall nevertheless be payable, when, as and if declared, on
such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative, whether or
not earned or declared, on outstanding shares of Series B Preferred Stock
from the Dividend Pays the date of issue of such shares is prior to the
record date for the first Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series B Preferred
Stock entitled to receive a quarterly dividend and before such Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Dividend Payment Date. Accrued but unpaid
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dividends shall not bear interest. Dividends paid on the shares of Series B
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders of
shares of Series B Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth and except as otherwise provided in this certificate of
incorporation or required by law, each share of Series B Preferred Stock
shall entitle the holder thereof to 100 votes on all matters upon which
the holders of the Common Stock of the corporation are entitled to vote.
In the event the corporation shall at any time after July 9, 1996
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in this certificate of
incorporation or in any other certificate of designations creating a
series of Preferred Stock or any similar stock, and except as otherwise
required by law, the holders of shares of Series B Preferred Stock and
the holders of shares of Common Stock and any other capital stock of the
corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the
corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in
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Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not earned or declared, on
shares of Series B Preferred Stock outstanding shall have been paid in
full, the corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (as to dividends) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (as to dividends) with the Series B
Preferred Stock, except dividends paid ratably on the Series B Preferred
Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock, provided that
the corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
corporation ranking junior (as to dividends and upon dissolution,
liquidation or winding up) to the Series B Preferred Stock or rights,
warrants or options to acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series B Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series B Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The corporation shall not permit any subsidiary of the corporation to
purchase or otherwise acquire for consideration any shares of stock of the
corporation unless the corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their retirement become authorized but
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unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding up. Upon any liquidation,
dissolution or winding up of the corporation, no distribution shall be made (A)
to the holders of the Common Stock or of shares of any other stock of the
corporation ranking junior, upon liquidation, dissolution or winding up, to the
Series B Preferred Stock unless, prior thereto, the holders of shares of Series
B Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not earned or
declared, to the date of such payment, provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (B) to the holders of shares of stock ranking on a parity
upon liquidation, dissolution or winding up with the Series B Preferred Stock,
except distributions made ratably on the Series B Preferred Stock and all such
parity stock in proportion to the total amounts to which holders of all such
shares are entitled upon liquidation, dissolution or winding up. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Series B liquidation preference and the liquidation preferences of
all other classes and series of stock of the corporation, if any, that rank on a
parity with the Series B Preferred Stock in respect thereof, then the assets
available for such distribution shall be distributed ratably to the holders of
the Series B Preferred Stock and the holders of such parity shares in the
proportion to their respective liquidation preferences. In the event the
corporation shall at any time after July 9, 1996 declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series B Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(A) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc. In case the corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are converted into, exchanged for or changed into
other stock or securities, cash and/or any other property, then in any such case
each share of Series B Preferred Stock shall at the same time be similarly
converted into, exchanged for or changed into an amount per share (subject to
the provision for adjustment hereinafter set forth) equal
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to 100 times the s, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is converted,
exchanged or converted. In the event the corporation shall at any time after
July 9, 1996 declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the conversion, exchange or change of shares
of Series B Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series B Preferred Stock shall
not be redeemable from any holder.
Section 9. Rank. The Series B Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the corporation, junior to all other series of
Preferred Stock and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to this certificate of
incorporation would alter, change or repeal any of the preferences, powers or
special rights given to the Series B Preferred Stock so as to affect the Series
B Preferred Stock adversely, then the holders of the Series B Preferred Stock
shall be entitled to vote separately as a class upon such amendment, and the
affirmative vote of two-thirds of the outstanding shares of the Series B
Preferred Stock, voting separately as a class, shall be necessary for the
adoption thereof, in addition to such other vote as may be required by the
General Corporation Law of the State of Delaware.
Section 11. Fractional Shares. Series B Preferred Stock may be issued in
fractions of a share that shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series B Preferred Stock.
(5) Preemptive Rights. Neither the holders of preferred stock nor the
holders of common stock shall have any preemptive rights, and the corporation
shall have the right to issue and sell to any person or persons any shares of
its capital stock or any option rights or any securities having conversion or
option rights, without first offering such shares, rights or securities to any
holders of preferred stock or common stock.
FIFTH: (1) The business and affairs of the corporation shall be managed by
a Board of Directors. The number of directors shall be fixed from
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time to time by resolution adopted by affirmative vote of the majority of the
Board of Directors, but shall not be fixed at a number less than three.
The directors shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, with the term of the first class to expire at the 1999 annual meeting
of the stockholders, the term of office of the second class to expire at the
2000 annual meeting of the stockholders, and the term of office of the third
class to expire at the 2001 annual meeting of the stockholders, with the members
of each class to hold office until their successors are elected and qualified.
At each succeeding annual meeting of the stockholders of the corporation, the
successors to the class of directors whose term expires at the meeting shall be
elected to hold office for a term expiring at the annual meeting of the
stockholders held in the third year following the year of their election.
Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred until such director's successor shall have been
elected and qualified. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Directors may be removed only for cause, and then only by the affirmative
vote of at least 75 percent in voting power of all shares of the corporation
entitled to vote generally in the election of directors, voting as a single
class.
(2) Notwithstanding the foregoing, whenever the holders of any one or more
series of preferred stock issued by the corporation shall have the right, voting
separately as a series or separately as a class with one or more such other
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, removal, filling of vacancies and other features of
such directorships shall be governed by the terms of this certificate of
incorporation (including any certificate of designations relating to any series
of preferred stock) applicable thereto, and such directors so elected shall not
be divided into classes pursuant to this Article FIFTH unless expressly provided
by such terms.
SIXTH: The Board of Directors shall be authorized to make, amend, alter,
change, add to or repeal the By-Laws of the corporation in any manner not
inconsistent with the laws of the State of Delaware, subject to the power of the
stockholders to amend, alter, change, add to or repeal the By-Laws made by the
Board of Directors. Notwithstanding anything contained in this certificate of
incorporation to the contrary, the affirmative vote of the
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holders of at least 75 percent in voting power of all the shares of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required in order for the stockholders to
alter, amend or repeal any provision of the By-Laws which is to the same effect
as Article FIFTH, Article SIXTH, and Article FOURTEENTH of this certificate of
incorporation or to adopt any provision inconsistent therewith.
SEVENTH: (1) (a) The corporation shall, to the full extent permitted
by the Laws of the State of Delaware as then in effect or, if less stringent,
in effect on December 31, 1985 ("Delaware Law"), and as more fully described
in the By-Laws, indemnify any person (the "Indemnitee") made or threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and
whether or not by or in the right of the corporation, by reason of the fact
that the Indemnitee is or was a director, officer or employee of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, trustee, partner, or other agent of any other
enterprise or legal person (any such action, suit or proceeding being herein
referred to as a "Legal Action") against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee in connection with such Legal Action or
its investigation, defense or appeal (herein called "Indemnified Expenses"),
if the Indemnitee has met the standard of conduct necessary under Delaware
Law to permit such indemnification. Rights to indemnification shall extend
to the heirs, beneficiaries, administrators and executors of any deceased
Indemnitee.
For purposes of this Section, reference to "any other enterprise or legal
person" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries.
(b) The Indemnified Expenses shall be paid by the corporation in
advance as shall be appropriate to permit Indemnitee to defray such expenses
currently as incurred, provided the Indemnitee agrees in writing that in the
event it shall ultimately be determined as provided hereunder that Indemnitee
was not entitled to be indemnified, then Indemnitee shall promptly
repay to the corporation such amounts so paid.
(c) Any amendment, repeal or modification of this Article SEVENTH,
the corporation's By-Laws or any applicable provision of Delaware Law, or any
other instrument, which eliminates or diminishes the indemnification rights
provided for in this Article SEVENTH shall be ineffective as against an
Indemnitee with respect to any Legal Action based upon actions taken or not
taken by the Indemnitee prior to such repeal or the adoption of such
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modification or amendment. The provisions of this Article SEVENTH, Section
(1) shall be applicable to all Legal Actions made or commenced after the
adoption hereof, whether arising from acts or omissions to act occurring
before or after its adoption. The provisions of this Article SEVENTH,
Section (1) shall be deemed to be a contract between the corporation and each
director or officer who serves in such capacity at any time while this
Article SEVENTH, Section (1) and the relevant provisions of Delaware Law and
other applicable law, if any, are in effect. If any provision of this
Article SEVENTH, Section (1) shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect the
validity of the remaining provisions hereof. The rights of indemnification
provided in this Article SEVENTH, Section (1) shall neither be exclusive of,
nor be deemed in limitation of, any rights to which an officer, director,
employee or agent may otherwise be entitled or permitted by contract, this
certificate of incorporation, vote of stockholders or directors or otherwise,
or as a matter of law, both as to actions in such person's official capacity
and actions in any other capacity while holding such office, it being the
policy of the corporation that indemnification of any person whom the
corporation is obligated to indemnify pursuant to subsection (a) of this
Article SEVENTH, Section (1) shall be made to the fullest extent permitted by
law.
(d) The corporation may purchase and maintain insurance on behalf
of any person described in subsection (a) of this Article SEVENTH, Section
(1) against any liability asserted against such person, whether or not
the corporation would have the power to indemnify such person against such
liability under the provisions of this Article SEVENTH, Section (1) or
otherwise.
(2) To the full extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a director
of the corporation shall not be liable to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director. No repeal,
amendment or modification of this Article, whether direct or indirect, shall
eliminate or reduce its effect with respect to any act or omission of a
director of the corporation occurring prior to such repeal, amendment or
modification.
EIGHTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
corporation under Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority
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in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and
to any reorganization of this corporation as a consequence of such compromise
or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
corporation, as the case may be, and also on this corporation.
NINTH: [Reserved]
TENTH: [Reserved]
ELEVENTH: [Reserved]
TWELFTH: [Reserved]
THIRTEENTH: The vote of the stockholders of the corporation required to
approve any Business Transaction shall be as set forth in this Article
THIRTEENTH. Each capitalized term shall have the meaning ascribed to it in
Paragraph (B) of this Article.
(A) Notwithstanding any provision of law or any other provision of this
certificate of incorporation or any agreement with any national securities
exchange or otherwise which might permit a lesser vote or no vote and in
addition to any affirmative vote required of the holders of any particular
class or series of Voting Stock by law or by this certificate of
incorporation, the affirmative vote of the holders of not less than 51% of
the outstanding shares of Voting Stock of the corporation beneficially owned
by stockholders other than the Related Person shall be required for the
approval or authorization of any Business Transaction; provided, however,
that such 51% voting requirement shall not be applicable to any Business
Transaction, and such Business Transaction shall require only such
affirmative vote as is required by law, any other provision of this
certificate of incorporation, any preferred stock designation or any
agreement with any national securities exchange, if, in the case of a
Business Transaction that does not involve any cash or consideration being
received by the stockholders of the corporation solely in
respect of their ownership of shares of Voting Stock of the corporation, the
condition specified in the following paragraph (1) is satisfied, or, in the
case of any other Business Transaction, the conditions specified in either of
the following paragraphs (1) and (2) are satisfied.
(1) the Continuing Directors at the time of such Business
Transaction constitute at least a majority of the Board of Directors of
the corporation and such Business Transaction shall have been approved
by a majority vote of the Continuing Directors; or
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(2)(a) the consideration to be received by holders of a particular
class or series of outstanding Voting Stock (including common stock) shall be
in cash or in the same form as was previously paid in order to acquire
beneficially shares of such class or series of Voting Stock that are
beneficially owned by the Related Person and, if the Related Person
beneficially owns shares of any class or series of Voting Stock that were
acquired with varying forms of consideration, the form of consideration to be
received by holders of such class or series of Voting Stock shall be either
cash or the form used to acquire beneficially the largest number of shares of
such class or series of Voting Stock beneficially acquired by it prior to the
Announcement Date; and
(b) the aggregate amount of the cash and the Fair Market Value as of the
Consummation Date of any consideration other than cash to be received per
share by holders of common stock in such Business Transaction shall be at
least equal to the highest of the following (it being intended that the
requirements of this clause (A)(2)(b) shall be required to be met with
respect to all shares of common stock outstanding whether or not the Related
Person has acquired any shares of the common stock):
i) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
in order to acquire any shares of common stock beneficially owned by the
Related Person which were acquired beneficially by such Related Person (x)
with in the two-year period immediately prior to the Announcement Date or
(y) in the transaction in which it became a Related Person, whichever is
higher; or
ii) the Fair Market Value per share of common stock on the
Announcement Date or on the Determination Date, whichever is higher; and
(c) the aggregate amount of the cash and the Fair Market Value as of the
Consummation Date of any consideration other than cash to be received per
share by holders of shares of any other class or series of Voting Stock,
other than common stock, shall be at least equal to the highest of the
following (it being intended that the requirements of this clause (A)(2)(c)
shall be required to be met with respect to every class and series of such
outstanding Voting Stock, whether or not the Related Person has previously
acquired any shares of a particular class or series of Voting Stock):
i) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
in order to acquire any shares of such class or series of Voting Stock
beneficially owned by the Related Person which were acquired beneficially
by such Related Person (x) with the two-year
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period immediately prior to the Announcement Date or (y) in the
transaction in which it became a Related Person, whichever is higher;
ii) if applicable, the highest preferential amount per share to which
the holders of share of such class or series of Voting Stock are entitled
in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the corporation; or
iii) the Fair Market Value per share of such class or series of Voting
Stock on the Announcement Date or the Determination Date, whichever is
higher; and
(d) after such Related Person has become a Related Person and prior to
the consummation of such Business Transaction:
i) such Related Person shall not have become the Beneficial Owner of
any additional shares of Voting Stock of the corporation, except as part
of the transaction in which it became a Related Person or upon conversion
of convertible securities acquired by it prior to becoming a Related
Person or as a result of a pro rata stock dividend or stock split; and
ii) such Related Person shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial
assistance or tax credits or other tax advantages provided by the
corporation or any Subsidiary, whether in anticipation of or in
connection with such Business Transaction or otherwise; and
iii) such Related Person shall not have caused any material change in
the corporation's business or capital structure, including, without
limitation, the issuance of shares of capital stock of the corporation to
any third party; and
iv) there shall have been (aa) no failure to declare and pay at the
regular date therefor any full quarterly dividends (whether or not
cumulative) on any outstanding preferred stock, and (bb) no reduction in
the annual rate of dividends paid on common stock (after giving effect to
any reclassification, including any reverse stock split, recapitalization,
reorganization or similar transaction which has the effect of enlarging or
reducing the number of outstanding shares of common stock), unless such
failure or reduction shall have been approved by a majority of the
Continuing Directors; and
(e) a proxy or information statement describing the proposed Business
Transaction and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder
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(or any subsequent provisions replacing such Act, rules and regulations),
whether or not the corporation is then subject to such requirements, shall be
mailed at least thirty (30) days prior to the consummation of such Business
Transaction to the public stockholders of the corporation and shall contain
at the front thereof in a prominent place (i) any recommendations as to the
advisability (or inadvisability) of the Business Transaction which the
Continuing Directors, if any, may choose to state and (ii) the opinion of a
reputable national investment banking firm as to the fairness (or not) of
such Business Transaction from the point of view of the remaining public
stockholders of the corporation (such investment banking firm to be engaged
solely on behalf of the remaining public stockholders, to be paid a
reasonable fee for their services by the corporation upon receipt of such
opinion, to be unaffiliated with such Related Person, and, if there are at
the time any Continuing Directors, to be selected by a majority of the
Continuing Directors).
(B) For purposes of this Article THIRTEENTH:
(1) the term "Business Transaction" shall mean
(a) any merger or consolidation of the corporation or any
Subsidiary with (i) any Related Person or (ii) any other corporation or
entity (whether or not itself a Related Person) which is, or after such
merger or consolidation, would be, an Affiliate of a Related Person;
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or in a series of transactions) to or
with any Related Person or any Affiliate of any Related Person of assets
of the corporation or any Subsidiary having an aggregate Fair Market
Value of $10,000,000 or more;
(c) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of a Related
Person or any Affiliate of the Related Person;
(d) the issuance of or transfer by the corporation or any
Subsidiary (in one transaction or in a series of related transactions)
of any securities of the corporation or any Subsidiary to a Related
Person, or any Affiliate of a Related Person, in exchange for cash,
securities or other property (or a combination thereof) having a Fair
Market Value of $10,000,000 or more, other than the issuance of
securities upon the conversion of convertible securities of the
corporation or any Subsidiary which were not acquired by such Related
Person (or such Affiliate) from the corporation or a Subsidiary;
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(e) any reclassification of securities (including any reverse stock
split), or recapitalization or reorganization of the corporation, or any
merger or consolidation of the corporation with any of its Subsidiaries or
any self tender offer for or repurchase of securities of the corporation
or any Subsidiary by the corporation or any Subsidiary or any other
transaction (whether or not with or into or otherwise involving a Related
Person) which in any such case has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
or series of stock or securities convertible into stock of the corporation
or any Subsidiary which is directly or indirectly beneficially owned by
any Related Person or any Affiliate of any Related Person;
(2) A person shall mean any individual, firm, corporation, group (as such
term is used in Rule 13d of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1984) or other
entity.
(3) "Related Person" shall mean any person (other than the corporation or
any Subsidiary or any employee benefit plan of the corporation or any
Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more than
ten percent of the combined voting power of the then outstanding shares of
Voting Stock; or
(b) is an Affiliate of the corporation and at anytime within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of ten percent or more of the
combined voting power of the then outstanding shares of Voting Stock; or
(c) is an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of Voting Stock that were at any time within the
two-year period immediately prior to the date in question beneficially
owned by a Related Person, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
(4) A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (a)
the right to acquire (whether or not such right is exercisable
immediately), pursuant to any agreement, arrangement or
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understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote or direct the
vote pursuant to any agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(5) For the purposes of determining whether a person is a Related Person
pursuant to Paragraph (B)(3) of this Article THIRTEENTH, the number of shares
of Voting Stock deemed to be outstanding shall include shares deemed owned by
such Related Person through application of Paragraph (B)(4) of this Article
but shall not include any other shares of Voting Stock that may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(6) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December 31, 1984.
(7) "Subsidiary" shall mean any corporation more than 50% of whose
outstanding stock having ordinary voting power in the election of directors
is owned, directly or indirectly, by this corporation or by a Subsidiary or
by this corporation and one or more Subsidiaries; provided, however, that for
the proposes of the definition of Related Person set forth in Paragraph
(B)(3) of this Article THIRTEENTH, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by this corporation.
(8) "Continuing Director" shall mean any member of the Board of Directors
of this corporation who is unaffiliated with, and not a nominee of, the
Related Person and was a member of the Board prior to the time that the
Related Person became a Related Person, and any successor of a Continuing
Director who is unaffiliated with, and not a nominee of, the Related Person
and who is recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the Board of Directors.
(9) "Fair Market Value" shall mean: (1) in the case of stock, the highest
closing sale price during the 30-day period preceding the date in question of
a share of such stock on the Composite Tape of New York Stock Exchange-Listed
stocks, or, if such stock is not quoted on the New York Stock Exchange-
Composite Tape, on the principal United States
89
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation with respect to a
share of such stock during the 30-day period preceding the date in question
on the National Association of Securities Dealers, Inc. Automated Quotation
System or any system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith; and (2)
in the case of stock of any class or series which is not traded on any United
States registered securities exchange nor in the over-the-counter market or
in the case of property other than cash or stock, the fair market value of
such property on the date in question as determined by a majority of the
Continuing Directors in good faith.
(10) In the event of any Business Transaction in which the corporation
survives, the phrase "any consideration other than cash to be received" as
used in Paragraph (A)(2)(b) and (A)(2)(c) of this Article THIRTEENTH shall
include the shares of common stock and/or the share of any other class of
outstanding Voting Stock retained by the holders of such shares.
(11) "Announcement Date" shall mean the date of first public announcement
of the proposed Business Transaction.
(12) "Determination Date" shall mean the date on which the Related Person
became a Related Person.
(13) "Consummation Date" shall mean the date of the consummation of the
Business Transaction.
(14) The terms "Voting Stock" shall mean all outstanding shares of capital
stock of all classes and series of the corporation entitled to vote generally
in the election of directors of the corporation, in each case voting together
as a single class.
(C) If the Continuing Directors constitute at least a majority of the
Board of Directors of the corporation, a majority of such Continuing
Directors shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article THIRTEENTH, including, without
limitation:
(1) whether a person is a Related Person;
(2) the number of shares of Voting Stock beneficially owned by any
person;
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(3) whether a person is an Affiliate or Associate of another person;
(4) whether the requirements of (A) of this Article THIRTEENTH have been
met with respect to any Business Transaction; and
(5) whether the assets which are the subject of any Business Transaction
have, or the consideration to be received for the issuance or transfer of
securities by the corporation or any Subsidiary in any Business Transaction
has, an aggregate Fair Market Value of $10,000,000 or more. The good faith
determination of a majority of the Continuing Directors on such matters shall
be conclusive and binding for all purposes of this Article THIRTEENTH.
(D) Nothing contained in this Article THIRTEENTH shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
(E) Notwithstanding anything contained in this certificate of incorporation
to the contrary, the affirmative vote of (1) the holders of at least 51% of the
Voting Stock, voting together as a single class, and (2) the holders of a least
51% of the Voting Stock, voting together as a single class, other than shares of
Voting Stock beneficially owned by a Related Person, shall be required to alter,
amend or repeal this Article THIRTEENTH or to adopt any provision inconsistent
therewith.
FOURTEENTH: Any action required or permitted to be taken by the holders of
the common stock of the corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and subject to the
rights of the holders of any series of preferred stock, special meetings of
stockholders of the corporation may be called only by the Chief Executive
Officer of the corporation or by the Board of Directors pursuant to a resolution
approved by the Board of Directors.
FIFTEENTH: Notwithstanding anything contained in this certificate of
incorporation to the contrary, the affirmative vote of the holders of at least
75 percent in voting power of all the shares of the corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend or repeal Article FIFTH, Article SIXTH, Article
FOURTEENTH or this Article FIFTEENTH or to adopt any provision inconsistent
therewith.
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EXHIBIT 1.6
TO THE MERGER AGREEMENT
FORM OF
AMENDED AND RESTATED
BY-LAWS
OF
XXXX-XxXXX CORPORATION
ARTICLE I
OFFICES
Section 1. The principal place of business of Xxxx-XxXxx Corporation
("Corporation") shall be in Oklahoma City, Oklahoma.
Section 2. The Corporation may also have offices at such other places as
the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
SEAL
Section 1. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization, and the words "Corporate Seal,
Delaware". The Corporate Seal may be used by causing it or a facsimile thereof
to be impressed, affixed or reproduced.
Section 2. The corporate seal shall be retained under the custody and
control of the Secretary or Assistant Secretary except as and to the extent the
use of same by others may be expressly authorized by the Board of Directors.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1. All meetings of the stockholders for any purpose may be held
at such place as shall be stated in the notice of the meeting.
Section 2. An annual meeting of the stockholders shall be held within one
hundred fifty (150) days after the end of each fiscal year as the Board of
Directors may set for a particular year's annual meeting, at which meeting they
shall elect by a plurality vote by ballot a board of directors and transact such
other business as may properly be brought before the meeting.
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Section 3. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
be requisite and shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by law, by the
Certificate of Incorporation or by these By-Laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of voting stock shall be
present. At such adjourned meeting at which the requisite amount of voting stock
shall be represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 4. At any meeting of the stockholders, every stockholder having
the right to vote shall be entitled to vote in person or by proxy appointed
either by an instrument in writing, subscribed by such stockholder or by other
means permitted by applicable law.
Section 5. Except as may otherwise be provided by law or in the
Certificate of Incorporation of the Corporation, or any amendment thereto, each
stockholder shall have one vote for each share of the stock having voting power,
registered in his name on the books of the Corporation, and except where the
transfer books of the Corporation shall have been closed or a date shall have
been fixed as a record date for the determination of its stockholders entitled
to vote, no share of stock shall be voted on at any election for directors which
shall have been transferred on the books of the Corporation within twenty days
preceding such election of directors, or on any other matter respecting which
stockholders are entitled to vote if such stock has been so transferred within
twenty days prior to action on such matter.
Section 6. Except as otherwise provided by law, written notice of the
annual meeting of stockholders shall be given at least ten days prior to the
meeting, and in accordance with Article XXI hereof, to each stockholder so
entitled to vote thereat.
Section 7. A complete list of the stockholders so entitled to vote at the
ensuing election of directors arranged in alphabetical order, with the address
of each, and the number of voting shares registered in the name of each, shall
be filed in the office where the election is to be held, at least ten days
before every election, and shall at all times during the ordinary business hours
and during the whole time of said election be open to the examination of any
stockholder.
Section 8. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, shall be called only by the
Chief Executive Officer of the Corporation or by the Secretary at the
93
direction of the Board of Directors pursuant to a resolution approved by the
Board of Directors.
Section 9. Business transacted at all special meetings shall be confined
to the objects stated in the notice of the meeting.
Section 10. Written notice of a special meeting of stockholders, stating
the time and place and object thereof, shall be given at least ten days before
such meeting, and in accordance with Article XXI hereof, to each stockholder
entitled to vote thereat.
Section 11.
(A) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting delivered pursuant to Article III, Section 6 of
these By-Laws, (b) by or at the direction of the Chief Executive Officer or the
Board of Directors or (c) by any stockholder of the Corporation who is entitled
to vote at the meeting, who complied with the notice procedures set forth in
subparagraphs (2) and (3) of this paragraph (A) of this By-Law and who was a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this By-Law, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation, and, in the case of business other than
nominations, such other business must be a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than seventy days nor
more than ninety days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than twenty days, or delayed by more than seventy
days, from such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the ninetieth day prior to such annual meeting and
not later than the close of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected; (b) as to
any other
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business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2)
of this By-Law to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least eighty
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this By-Law shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made by the
Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Article
III, Section 10 of these By-Laws. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Chief Executive Officer or the Board of Directors
or (b) by any stockholder of the Corporation who is entitled to vote at the
meeting, who complies with the notice procedures set forth in this By-Law and
who is a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation. Nominations of stockholders of persons for
election to the Board of Directors may be made at such a special meeting of
stockholders if the stockholder's notice as required by paragraph (A)(2) of this
By-Law shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the ninetieth day prior to such special meeting
and not later than the close of business on the later of the seventieth day
prior to such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(C) General.
(1) Only persons who are nominated in accordance with the procedures set
the forth in this By-Law shall be eligible to serve as
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directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this By-Law and, if any proposed nomination or business is not in compliance
with this By-Law, to declare that such defective nomination shall be disregard
or that such proposed business shall not be transacted.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Xxxxx News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) For purposes of this By-Law, no adjournment nor notice of adjournment
of any meeting shall be deemed to constitute a new notice of such meeting for
purposes of this Section 11, and in order for any notification required to be
delivered by a stockholder pursuant to this Section 11 to be timely, such
notification must be delivered within the periods set forth above with respect
to the originally scheduled meeting.
(4) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE IV
DIRECTORS
Section 1. The property and business of the Corporation shall be managed
by its Board of Directors, the members of which need not be stockholders.
Section 2. The Board of Directors of the Corporation shall consist of
such number of directors, not less than three, as shall from time to time be
fixed exclusively by resolution of the Board of Directors. The directors shall
be divided into three classes in the manner set forth in the Certificate of
Incorporation of the Corporation, each class to be elected for the term set
forth therein. Directors shall (except as hereinafter provided for the filling
of vacancies and newly created directorships) be elected by the holders of a
plurality of the voting power present in person or represented by proxy and
entitled to vote.
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Section 3. Each director shall be elected to serve until his successor
shall be elected and shall qualify by evidence of acceptance of such office and
such acceptance shall be presumed in the absence of express rejection thereof by
the person elected within ten days after his knowledge of election. A person who
has passed his 64th birthday and who has not theretofore served as a director of
the Corporation shall not be eligible to be elected a director, whether pursuant
to this Section 3 or to Section 6, of this Article. A person who has passed his
70th birthday, or who has retired as an employee, shall not in any event be
eligible for reelection to the Board or be qualified for continued service as a
director of the Corporation, irrespective of prior service as a director of the
Corporation. For purposes of this Section, any service as a director of {O
Company} prior to the merger of {O Company} shall be deemed to be prior service
as a director of the Corporation. Any failure of any director to meet the
qualifications for service as a director set forth in these By-Laws, or
otherwise under law, shall result in the termination of the term of such
director.
Section 4. The directors may hold their meetings, have one or more
offices and keep the books of the Corporation in the City of Oklahoma City,
Oklahoma, or at such other places as they may from time to time determine and
designate.
Section 5. The members of the Board of Directors or any committee thereof
may participate in a meeting of such Board or committee, as the case may be, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this subsection shall constitute presence
in person at such a meeting.
Section 6. Vacancies in the Board of Directors, however occasioned, and
newly created directorships resulting from any increase in the authorized number
of directors, may be filled only by a majority of the remaining directors then
in office though less than a quorum and the accepting directors so chosen shall
hold office for a term as set forth in the Certificate of Incorporation of the
Corporation and until a successor or successors have been duly elected and
qualified unless sooner displaced.
Section 7. Notwithstanding the foregoing, whenever the holders of any one
or more series of Preferred Stock issued by the Corporation shall have the
right, voting separately by series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, removal, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Amended and Restated Certificate of Incorporation applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to Article SEVENTH of the Amended and Restated Certificate of
Incorporation unless expressly provided by such terms. The number of directors
that may be elected by the holders of any such series of Preferred Stock shall
be in addition to the number fixed by or pursuant to
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the By-Laws. Except as otherwise expressly provided in the terms of such series,
the number of directors that may be so elected by the holders of any such series
of stock shall be elected for terms expiring at the next annual meeting of
stockholders and without regard to the classification of the members of the
Board of Directors as set forth in Section 2 hereof, and vacancies among
directors so elected by the separate vote of the holders of any such series of
Preferred Stock shall be filled by the affirmative vote of a majority of the
remaining directors elected by such series, or, if there are no such remaining
directors, by the holders of such series in the same manner in which such series
initially elected a director.
Section 8. Subject to provisions of pertinent law and the Certificate of
Incorporation, dividends, if any, declared respecting any class of shares of the
Corporation's capital stock may be declared by the Board of Directors at any
regular meeting thereof and despite any provision of the By-Laws to the contrary
at any special meeting thereof, whether or not consideration or action
respecting dividends be stated in the notice thereof; and dividends may be paid
in cash or, if the declaration thereof so provides, in property, including
shares of the Corporation. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve fund to
meet contingencies, or for equalizing dividends, or for repair or maintaining
any property of the Corporation, or for such other purpose as the Board of
Directors shall deem conducive to the interest of the Corporation, and the Board
of Directors may abolish any reserve in the manner in which it was created.
Section 9. The Board of Directors shall have power to close the stock
transfer books of the Corporation for a period not exceeding sixty days
preceding the date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect or for any other
purpose; provided, however, that in lieu of closing the stock transfer books, as
aforesaid, the Board of Directors may fix in advance a date not exceeding sixty
days preceding the date of any meeting of stockholders or the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date for such other purpose, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting or entitled
to receive payment of any such dividend, or to any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or exchange of
capital stock, or for such other purpose, and in such case only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any adjournment,
thereof, or to receive such allotment of rights, or to exercise such rights or
to be considered as stockholders for such other purpose, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
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Section 10. In addition to the powers and authorities by these By-Laws
expressly conferred upon it, the Board of Directors may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these By-Laws directed or required
to be exercised or done by the stockholders.
Section 11. Any action required or permitted to be taken at any meeting
of the Board of Directors may be taken without a meeting if prior to such action
a written consent thereto is signed by all members of the Board and such written
consent is filed with the minutes of proceedings of the Board.
ARTICLE V
COMMITTEES
Section 1. The Board of Directors may appoint an Executive Committee of
two or more directors, which shall consist of the Chief Executive Officer and
such other director or directors as shall be designated by resolution adopted by
the Board of Directors. Such Committee shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation while the Board of Directors is not in session
except that it shall not have power or authority in reference to (1) amending
the Certificate of Incorporation, (2) adopting an agreement of merger or
consolidation under Section 251 or 252 of the Delaware General Corporation Law,
(3) recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, (4) recommending to
the stockholders dissolution of the Corporation or revocation of a dissolution,
or (5) amending the By-Laws; nor shall it have any power or authority which the
Board of Directors has by resolution withheld from it. Vacancies in the
membership of the Committee shall be filled by the Board of Directors at a
regular meeting or a special meeting called for that purpose.
Section 2. The Committees of the Board shall be governed by Subsection
(2) of Section 141(c) of the Delaware General Corporation Law which provides for
the designation of committees of the Corporation's Board of Directors and the
permissible functions of such committees.
Section 3. The Board of Directors by resolution or resolutions adopted by
a majority of the Board of Directors may designate other committees, each
committee to consist of two or more directors of the Corporation and to exercise
such powers and duties and to have such name as may be designated by resolution
adopted by the Board of Directors.
Section 4. Each committee of the Board of Directors may meet at such
stated times and/or upon call with such notice as said committee may by
resolution provide from time to time. At all meetings of each committee, a
majority of members thereof shall be necessary and sufficient to constitute a
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quorum for the transaction of business, and the act of a majority of the members
present at any meeting at which there is a quorum shall be the act of the
committee.
Section 5. Committees of the Board of Directors shall keep regular
minutes of their proceedings. Any action required or permitted to be taken at
any meeting of the Committee may be taken without a meeting if prior to such
action a written consent thereto is signed by all members of the Committee and
such written consent is filed with the minutes of proceedings of the Committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
Section 1. Directors may, pursuant to resolution of the Board of
Directors, be paid a stated sum with respect to each regular and special meeting
of the Board of Directors and be allowed their expenses of attendance, if any,
for attending each meeting of the Board of Directors. Directors who are not
full-time employees of the Corporation may be paid such additional compensation
for their services as directors as may from time to time be fixed by resolution
of the Board of Directors. Nothing herein contained shall be construed to
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 2. Members of the Executive Committee and members of other
committees of the Board of Directors who are not full-time employees of the
Corporation may, pursuant to resolution of the Board of Directors, be paid a
stated sum for attending meetings of such committees. All members of committees
of the Board of Directors may, pursuant to resolution of the Board of Directors,
be allowed their expenses of attendance, if any, for attending meetings of such
committees.
ARTICLE VII
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Annual meetings of the Board of Directors shall be held at
such place within or without the State of Delaware as soon as practicable
following the election of new directors at the annual meeting of the
stockholders.
Section 2. Regular meetings of the Board of Directors may be held at such
time and place, within or without the State of Delaware as shall from time to
time be determined by the Board of Directors. After there has been such
determination and notice thereof has been once given to each member of the Board
of Directors, regular meetings may be held without any further notice being
given.
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Section 3. Special meetings of the Board of Directors may be called by
the Chief Executive Officer on twenty-four hour's notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the Chief Executive Officer or Secretary in like manner and on like notice on
the written request of a majority of the directors.
Section 4. At all meetings of the Board of Directors, a majority of the
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation or by these By-laws. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
ARTICLE VII-A
WAR AND NATIONAL EMERGENCY
Section 5. The emergency bylaws provided in this Article VII-A shall be
operative during any emergency resulting from an attack on the United States, or
during any nuclear or atomic disaster, or during the existence of any
catastrophe, or other similar emergency condition, as a result of which a quorum
of the Board of Directors cannot readily be convened for action. To the extent
not inconsistent with these emergency bylaws, the By-Laws of the Corporation
shall remain in effect during any emergency and upon its termination these
emergency bylaws shall cease to be operative.
Section 6. During any such emergency a meeting of the Board of Directors
may be called by any officer or director by giving two days' notice thereof to
such of the directors as it may be feasible to reach at the time and by such
means as may be feasible at the time. The notice shall specify the time and the
place of the meeting, which shall be the head office of the Corporation or any
other place specified in the notice. At any such meeting three members of the
then existing Board of Directors shall constitute a quorum, which may act by
majority vote.
Section 7. If the number of directors who are available to act shall drop
below three, additional directors, in whatever number is necessary to constitute
a Board of three Directors, shall be selected automatically from the first
available officers or employees in the order provided in the emergency
succession list established by the Board of Directors and in effect at the time
an emergency arises. Additional directors, beyond the minimum number of three
directors, but not more than three additional directors, may be elected from any
officers or employees on the emergency succession list.
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Section 8. The Board of Directors is empowered with the maximum authority
possible under the Delaware Corporation Law, and all other applicable law, to
conduct the interim management of the affairs of the Corporation in an emergency
in what it considers to be in the best interests of the Corporation (including
the right to amend this Article) irrespective of the provisions of the
Certificate of Incorporation or of the By-Laws.
ARTICLE VIII
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors, shall include a Chief Executive Officer and a President, and may
include a Chairman of the Board (who shall be selected from the directors then
serving), one or more Vice Chairmen of the Board (who shall be selected from the
directors then serving), one or more Executive Vice Presidents, Senior Vice
Presidents, and Vice Presidents, respectively, a General Counsel, a Secretary,
one or more Assistant Secretaries, a Treasurer, one or more Assistant
Treasurers, and a Controller. Any number of offices may be held by the same
person, but if an instrument is required by law to be executed, acknowledged or
verified by two or more officers, no officer shall execute, acknowledge or
verify such instrument in more than one capacity for such purpose.
Section 2. Without limiting the right of the Board of Directors to choose
officers of the Corporation at any time when vacancies occur or when the number
of officers is increased, the Board of Directors at the first meeting after each
annual meeting of stockholders shall choose a Chief Executive Officer, a
President and such other officers as shall be designated at such time,
including, if so designated, a Chairman of the Board, one or more Vice Chairmen
of the Board, Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents, respectively, a General Counsel, a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers, and a Controller.
None of said officers, except the Chairman of the Board, and Vice Chairmen of
the Board, need be members of the Board.
Section 3. The Board of Directors may choose such other officers and
agents as it shall deem necessary or advisable, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors, or, in the absence of
exact specification or limitation thereof by the Board of Directors, as the
Chief Executive Officer may determine from time to time. Subject to the below
provisions, each of the officers of the Corporation elected by the Board of
Directors or appointed by an officer in accordance with these By-Laws shall have
the powers and duties prescribed by law, by the By-Laws or by the Board of
Directors and, in the case of appointed officers, the powers and duties
prescribed by the appointing officer, and, unless otherwise prescribed by the
By-Laws or by the Board of Directors or such
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appointing officer, shall have such further powers and duties as ordinarily
pertain to that office.
Section 4. The salaries of all officers of the Corporation and of its
wholly owned subsidiaries, other than his own salary, shall be determined by the
Chief Executive Officer but shall be reviewed from time to time by an Executive
Compensation Committee appointed by the Board of Directors from among its
members. The Executive Compensation Committee shall recommend to the Board of
Directors such changes in the officers' salaries as fixed by the Chief Executive
Officer as it may deem appropriate and the Board of Directors shall instruct the
Chief Executive Officer to implement those of the recommended changes which it
approves. The salary of the Chief Executive Officer shall be determined by the
Board of Directors.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time with or without
cause by the affirmative vote of a majority of the whole Board of Directors.
ARTICLE IX
CHAIRMAN OF THE BOARD
Section 1. The Chairman of the Board shall do and perform such duties as
may from time to time be assigned to him by the Board of Directors or the Chief
Executive Officer.
ARTICLE X
CHIEF EXECUTIVE OFFICER
Section 1. The Chief Executive Officer shall preside at all meetings of
the stockholders and of the Board of Directors, and shall be a member, ex
officio, of all committees, except the Audit, Finance, Stock Option and
Executive Compensation committees. The Chief Executive Officer shall have
general and active management of the business of the Corporation, and shall see
that all orders and resolutions of the Board of Directors and of the committees
thereof are carried into effect.
Section 2. The Chief Executive Officer shall have authority, which he may
delegate, to execute certificates of stock, bonds, deeds, powers of attorney,
mortgages and other contracts, under the seal of the Corporation, unless
required by law to be otherwise signed and executed and unless the signing and
execution thereof shall be expressly and exclusively delegated by the Board of
Directors to some other officer or agent of the Corporation.
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ARTICLE XI
VICE CHAIRMAN OF THE BOARD
Section 1. In the absence of the Chief Executive Officer, the Vice
Chairman (or, if there exists more than one Vice Chairman, the Vice Chairman
designated by the Board of Directors) shall serve as the Chief Executive Officer
of the Corporation. The Vice Chairmen of the Board shall advise and counsel with
the Chief Executive Officer and with other officers of the Corporation, and each
shall do and perform such other duties as may from time to time be assigned to
him by the Board of Directors or the Chief Executive Officer.
Section 2. Any Vice Chairman of the Board, to the extent delegated by
the Chief Executive Officer or the Board of Directors, may execute certificates
of stock, bonds, deeds, powers of attorney, mortgages and other contracts under
the seal of the Corporation, unless required by law to be otherwise signed and
executed and unless the signing and execution thereof be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
ARTICLE XII
PRESIDENT
Section 1. The President shall be the chief operating officer of the
Corporation.
Section 2. The President shall have the authority, which he may
delegate, to execute certificates of stock, bonds, deeds, powers of attorney,
mortgages and other contracts, under the seal of the Corporation, unless
required by law to be otherwise signed and executed and unless the signing
and execution thereof shall be expressly and exclusively delegated by the
Board of Directors or the Chief Executive Officer to some other officer or
agent of the Corporation.
ARTICLE XIII
VICE PRESIDENTS
Section 1. There may be one or more Executive Vice Presidents, one
or more Senior Vice Presidents, and such other Vice Presidents, with or
without other such special designations, as may be elected by the Board of
Directors from time to time.
Section 2. The Executive Vice Presidents and each of the Vice
Presidents shall have the authority to sign certificates of stock, bonds,
deeds, mortgages and other contracts, unless required by law to be otherwise
signed and executed and unless the signing and execution thereof shall be
expressly and exclusively delegated by the Board of Directors or the Chief
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Executive Officer to some other officer or agent of the Corporation, and
perform such duties and exercise such powers as the Board of Directors or the
Chief Executive Officer shall prescribe.
ARTICLE XIV
SECRETARY
Section 1. The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for all committees of the Board of Directors when required.
He shall give, or cause to be given, all required notices of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the Chief Executive Officer,
under whose supervision he shall be. He shall be responsible for keeping in safe
custody the seal of the Corporation, and when such is proper, he shall affix the
same to any instrument requiring it, and when so affixed, it shall be attested
by his signature or by the signature of an Assistant Secretary.
Section 2. The Assistant Secretaries in the absence or disability
of the Secretary shall perform and exercise the powers of the Secretary and
shall perform such further duties as may be prescribed by the Secretary, the
Board of Directors or the Chief Executive Officer.
ARTICLE XV
TREASURER
Section 1. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the Corporation, in
such depositories as may be designated by the Board of Directors or the Chief
Executive Officer.
Section 2. The Treasurer shall: (a) endorse or cause to be endorsed
in the name of the Corporation for collection the bills, notes, checks or other
negotiable instruments received by the Corporation, (b) sign or cause to be
signed all bills, notes, checks or other negotiable instruments issued by the
Corporation and (c) pay out or cause to be paid out money, as the Corporation
may require, taking proper vouchers therefor; provided, however, that the Board
of Directors and the Chief Executive Officer may by resolution delegate, with or
without power to re-delegate, any and all of the foregoing duties of the
Treasurer to other officers, employees or agents of the Corporation, and to
provide that other officers, employees and agents shall have power to sign
bills, notes, checks, vouchers, orders, or other instruments on behalf of the
Corporation. The Treasurer shall
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render to the Chief Executive Officer and to the Board of Directors, whenever
they may require it, an account of his transactions as Treasurer.
Section 3. The Treasurer shall give the Corporation a bond if
required by the Board of Directors in a sum, and with one or more sureties
satisfactory to the Board, for the faithful performance of the duties of his
office and for the restoration of the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 4. The Assistant Treasurers in the absence or disability of
the Treasurer shall perform and exercise the powers of the Treasurer and shall
perform such further duties as may be prescribed by the Treasurer, the Board of
Directors or the Chief Executive Officer.
ARTICLE XVI
CONTROLLER
Section 1. The Controller shall have charge of the Corporation's
books of account, records and auditing, and shall be subject in all matters to
the control of the Board of Directors and the Chief Executive Officer.
ARTICLE XVII
VACANCIES AND DELEGATION OF DUTIES OF OFFICERS
Section 1. If the office of any officer or agent, one or more,
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office, or otherwise, the Board of Directors may choose a successor
or successors, who shall, unless the Board of Directors otherwise specifies,
hold office for the unexpired term in respect of which such vacancy occurred, or
until his successor shall be elected.
Section 2. In case of the absence of any officer of the Corporation,
or for any other reason that the Board of Directors may deem sufficient, the
Board of Directors may delegate, for the time being, the powers or duties, or
any of them, of such officer to any other officers and/or directors; provided a
majority of the entire Board of Directors concurs therein.
ARTICLE XVIII
STOCK AND STOCKHOLDERS
Section 1. The shares of stock of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series
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of the Corporation's stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate as provided in Article XVIII, Section 2 of these
By-Laws, or as otherwise permitted by law, representing the number of shares
registered in certificate form.
Section 2. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as they are
issued. They shall exhibit the holder's name and number of shares and shall be
signed by the Chairman of the Board, Chief Executive Officer, Vice Chairman of
the Board, President or a Vice President, and the Secretary or an Assistant
Secretary. Any and all signatures on a stock certificate may be a facsimile.
Section 3. Upon surrender to the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession, assignment
or authority to transfer, the Corporation will issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books. Transfers of uncertificated shares will be made on the records
of the Corporation as may be provided by law.
Section 4. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person whether or not
it shall have express or other notice thereof, except as expressly provided by
the laws of Delaware.
Section 5. A new certificate of stock of the Corporation may be
issued in place of any certificate theretofore issued by the Corporation and
alleged to have been lost, stolen or destroyed.
The Board of Directors may from time to time prescribe the terms and
conditions under which such new certificates may be issued. Among other things,
the Board of Directors may require that the owner of the allegedly lost, stolen
or destroyed certificate, or his legal representatives, submit proper evidence
in writing and under oath that the alleged loss, theft, or destruction actually
occurred, and may require that such owner or representatives give the
Corporation a bond, satisfactory to the Corporation as to form and security,
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate. A new certificate may
be issued without requiring any bond when, in the judgment of the Board of
Directors or of any officer of the Corporation to whom the Board of Directors
may delegate appropriate authority, it is proper to waive the bond requirement.
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ARTICLE XIX
INSPECTION OF BOOKS, CHECKS AND FISCAL YEAR
Section 1. The Board of Directors shall determine from time to time
whether, and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may by statute be
specifically open to inspection), or any of them, shall be open to the
inspection of the stockholders, and the stockholders' rights in this respect are
and shall be restricted and limited accordingly.
Section 2. Checks or demands for money and notes of the Corporation
may be signed by such officer or officers or such person or persons other than
those herein authorized and in such manner as the Board of Directors or the
Chief Executive Officer may from time to time provide.
Section 3. The fiscal year shall begin the first day in January of
each year and end the following December 31.
ARTICLE XX
DIRECTORS' ANNUAL STATEMENT
Section 1. The Board of Directors shall present at each annual
meeting a full and clear statement of the business and condition of the
Corporation.
ARTICLE XXI
NOTICES
Section 1. Whenever under the provisions of the Certificate of
Incorporation or of these By-Laws notice (which as herein used shall include
also annual reports, proxy statements and solicitations and other communications
to holders of the Corporation's securities) is required to be, or may be, given
to any director, officer, stockholder or other person, it may, unless legally
controlling provisions prohibit the same, be given in writing, by mail, by
depositing the same in any U.S. post office or letter-box, in a postpaid sealed
wrapper addressed to such person to whom the notice may be, or is required to be
given, at such address as appears on the books of the Corporation, and all
notices given in accordance with the provisions of this Article shall be deemed
to be given at the time when the same shall be thus mailed.
Section 2. Should a person who is a stockholder own shares evidenced
by more than one stock certificate, nevertheless only one notice (when any is
required to be, or may be, given to holders of shares of any or all classes)
shall be, in the sole discretion of the Corporation, required to
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be mailed and if different addresses as to such person are recorded on the
Corporation's stock ledger the notice may be mailed to the address that appears
to have been given latest in time unless the stockholders shall have expressly
directed otherwise in writing to the Secretary of the Corporation, nor shall
variations in the designation of the name or identity of any one stockholder
require the mailing of more than one notice to any one stockholder, which may be
mailed to any one of the names or designations that may so appear in the
Corporation's stock ledger with respect to such stockholder; and, at the sole
discretion of the Corporation, the distribution of dividend payments may be,
unless a stockholder shall expressly request multiple distributions strictly in
accordance with the stock ledger record of his multiple ownerships, handled in
accordance with or so as not to be repugnant to the purpose of the above
provisions, which is to avoid the expenditure by the Corporation of effort, time
and expense in such matters that might have been avoided had the recording of a
stockholder's name and/or address incident to his multiple record ownership of
shares been effected accurately, uniformly and consistently.
Section 3. Any stockholder, director or officer may waive in writing
or otherwise any notice required to be given under the provisions of pertinent
statutes or of the Certificate of Incorporation or of these By-Laws. A waiver of
notice in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
such notice.
ARTICLE XXII
INDEMNIFICATION
Section 1. The Corporation shall, to the full extent permitted by the
Laws of the State of Delaware as then in effect or, if less stringent, in effect
on December 31, 1985 ("Delaware Law"), indemnify any person (the "Indemnitee")
made or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether or not by or in the right of the Corporation, by
reason of the fact that the Indemnitee is or was a director, officer or employee
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, trustee, partner, or other agent of any other
enterprise or legal person (any such action, suit or proceeding being herein
referred to as a "Legal Action") against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the Indemnitee in connection with such Legal Action or its
investigation, defense or appeal (herein called "Indemnified Expenses"), if the
Indemnitee has met the standard of conduct necessary under Delaware Law to
permit such indemnification. Rights to indemnification shall extend to the
heirs, beneficiaries, administrators and executors of any deceased Indemnitee.
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For purposes of this Section, reference to "any other enterprise or
legal person" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries.
The Indemnified Expenses shall be paid by the Corporation in advance
as shall be appropriate to permit Indemnitee to defray such expenses currently
as incurred, provided the Indemnitee agrees in writing that in the event it
shall ultimately be determined as provided hereunder that Indemnitee was not
entitled to be indemnified, then Indemnitee shall promptly repay to the
Corporation such amounts so paid. The prepayment of expenses as provided for in
this Section 1 shall be authorized by the Board of Directors in the specific
case unless the Board of Directors receives within thirty (30) days of the
Indemnitee's request for indemnification an opinion of counsel selected in the
manner provided for in Section 2 of this Article XXII that there is no
reasonable basis for a belief that the Indemnitee's conduct met the requisite
standard of conduct. The fees of such counsel and all related expenses shall, in
all cases, be paid by the Corporation.
Section 2. The determination of whether Indemnitee has met the
standard of conduct required to permit indemnification under this By-Law shall
in the first instance be submitted to the Board of Directors of the Corporation.
If the Board by a majority vote of a quorum consisting of directors who were not
parties to such Legal Action determines Indemnitee has met the required standard
of conduct such determination shall be conclusive; but if such affirmative
majority vote is not given, then the matter shall be referred to independent
legal counsel for determination. Such outside counsel shall be selected by
agreement of the Board of Directors and Indemnitee or, if they are unable to
agree, then by lot from among those New York City law firms which (i) have more
than 100 attorneys, (ii) have a substantial practice in the corporate and
securities areas of law, (iii) have not performed any services for the
Corporation or any of its subsidiaries or affiliates for at least five (5) years
and (iv) have a rating of "av" in the then current Xxxxxxxxxx-Xxxxxxx Law
Directory. The fees and expenses of counsel in connection with making this
determination shall be paid by the Corporation.
Notwithstanding the foregoing, if dissatisfied with the determination
so made by counsel, Indemnitee may within two (2) years thereafter, petition any
court of competent jurisdiction to determine whether Indemnitee is entitled to
indemnification under the provisions hereof and such court shall thereupon have
the exclusive authority to make such determination. The Corporation shall pay
all expenses (including attorneys' fees) actually incurred by Indemnitee in
connection with such judicial determination.
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The termination of any Legal Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Indemnitee did not meet the requisite
standard of conduct; however, a successful defense of a Legal Action by
Indemnitee on the merits or otherwise shall conclusively establish Indemnitee
did meet such standard of conduct notwithstanding any previous determination to
the contrary under thin Section 2.
Section 3. The indemnification and advance payment of expenses as
provided in this Article XXII shall not be deemed exclusive of any other rights
to which Indemnitee may be entitled under any provision of law, the Certificate
of Incorporation, any By-Law or otherwise.
Section 4. If any provision of this Article XXII shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, the validity,
legality and enforceability of the remaining provisions of this Article XXII
shall not in any way be affected or impaired thereby.
Section 5. Any amendment, repeal or modification of these By-Laws,
the Corporation's Certificate of Incorporation or any applicable provision of
Delaware Law, or any other instrument, which eliminates or diminishes the
indemnification rights provided for in this Article XXII shall be ineffective as
against an Indemnitee with respect to any Legal Action based upon actions taken
or not taken by the Indemnitee prior to such repeal or the adoption of such
modification or amendment. The provisions of this By-Law shall be applicable to
all Legal Actions made or commenced after the adoption hereof, whether arising
from acts or omissions to act occurring before or after its adoption. The
provisions of this By-Law shall be deemed to be a contract between the
Corporation and each director or officer who serves in such capacity at any time
while this By-Law and the relevant provisions of Delaware Law and other
applicable law, if any, are in effect. If any provision of this By-Law shall be
found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining provisions hereof.
The rights of indemnification provided in this By-Law shall neither be exclusive
of, nor be deemed in limitation of, any rights to which an officer, director,
employee or agent may otherwise be entitled or permitted by contract, this By-
Law, vote of stockholders or directors or otherwise, or as a matter of law, both
as to actions in such person's official capacity and actions in any other
capacity while holding such office, it being the policy of the Corporation that
indemnification of any person whom the Corporation is obligated to indemnify
pursuant to this By-Law shall be made to the fullest extent permitted by law.
ARTICLE XXIII
AMENDMENTS
Section 1. These By-Laws may be altered or amended or repealed, in
whole or in part: By the affirmative vote of the holders of a majority of
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the stock issued and outstanding and entitled to a vote thereat, at any regular
or special meeting of the stockholders, or by the affirmative vote of a majority
of the Board of Directors in attendance at any regular or special meeting of the
Board of Directors; provided, however, that, notwithstanding any other
provisions of these By-Laws or any provision of law which might otherwise permit
a lesser vote of the stockholders, the affirmative vote of the holders of at
least 75 percent in voting power of all shares of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required in order for the stockholders to alter, amend or repeal
Section 8 and Section 11 of Article III, Sections 2 and 6 of Article IV or this
proviso to this Article XXIII of these By-Laws or to adopt any provision
inconsistent with any of such Sections or with this proviso.
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Exhibit 5.11
To the Merger Agreement
FORM OF ORYX AFFILIATE'S LETTER
___________, 199_
Xxxx-XxXxx Corporation
000 Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Pursuant to the terms of the Agreement and Plan of Merger, dated as of
October 14, 1998 (the "Merger Agreement"), between Xxxx-XxXxx Corporation
("Xxxx-XxXxx") and Oryx Energy Company ("Oryx"), Oryx shall be merged with and
into Xxxx-XxXxx (the "Merger"), and each share of common stock, par value $1.00
per share, of Oryx ("Oryx Common Stock") issued and outstanding after giving
effect to the Reverse Split and immediately prior to the Effective Time shall be
converted into the right to receive one share of common stock, par value $1.00
per share, of Xxxx-XxXxx ("Xxxx-XxXxx Common Stock"). Capitalized terms used
herein and not defined have the meanings assigned to them in the Merger
Agreement.
The undersigned has been advised that as of the date the Merger is
submitted to stockholders of Oryx for approval, the undersigned may be an
"affiliate" of Oryx, (i) as the term is defined for purposes of paragraph (c) of
Rule 145 of the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), and (ii) for purposes
of qualifying the Merger for pooling of interests accounting treatment under
Opinion 16 of the Accounting Principles Board and Accounting Series Releases 130
and 135, as amended, of the Commission, although nothing contained herein shall
be construed as an admission of either such fact, or as a waiver of any rights
that the undersigned may have to object to any claim that the undersigned is
such an affiliate on or after the date of this letter.
The undersigned hereby represents, warrants and covenants with and to
Xxxx-XxXxx that if the undersigned receives any Xxxx-XxXxx Common Stock as a
result of the Merger:
(A) The undersigned will not sell, transfer or otherwise dispose of
such Xxxx-XxXxx Common Stock unless (i) such sale, transfer or other
disposition has been registered under the Securities Act, (ii) such sale,
transfer or other disposition is made in conformity with the provisions of
Rule 145 under the Securities Act (as such rule may hereafter from time to
time be amended), or (iii) in the opinion of counsel in form and substance
reasonably satisfactory to Xxxx-XxXxx, or under a "no-action" or
interpretive letter obtained by the undersigned from the Commission, such
sale, transfer or other disposition will not
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violate or is otherwise exempt from registration under the Securities
Act.
(B) The undersigned understands that Xxxx-XxXxx is under no
obligation to register the sale, transfer or other disposition of shares of
Xxxx-XxXxx Common Stock by the undersigned or on the undersigned's behalf
under the Securities Act.
(C) The undersigned further represents, warrants and covenants with
and to Xxxx-XxXxx that the undersigned will not sell, transfer or otherwise
dispose of his or her interests in, or reduce his or her risk (as
contemplated by Commission Accounting Series Release No. 135) relative to,
any shares of Oryx Common Stock or Xxxx-XxXxx Common Stock beneficially
owned by the undersigned during the period commencing 30 days prior to the
Effective Time and ending at such time as Xxxx-XxXxx notifies the
undersigned that results covering at least 30 days of combined operations
of Xxxx-XxXxx after the Merger have been published by Xxxx-XxXxx, which
Xxxx-XxXxx agrees to publish in accordance with the terms of the Merger
Agreement, in the form of a quarterly earnings report, an effective
registration statement filed with the Commission, a report to the
Commission on Form 10-K, 10-Q or 8-K, or any other public filing or
announcement which includes the results of such combined operations.
(D) The undersigned understands and agrees that this letter
agreement shall apply to all shares of the capital stock of Oryx and Xxxx-
XxXxx that are deemed to be beneficially owned by the undersigned pursuant
to applicable federal securities laws.
(E) The undersigned has carefully read this letter and discussed
its requirements and other applicable limitations upon the undersigned's
ability to sell, transfer or otherwise dispose of the capital stock of Oryx
or Xxxx-XxXxx, to the extent the undersigned felt necessary, with the
undersigned's counsel or counsel for Oryx.
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This letter agreement shall be governed and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed therein.
This letter agreement shall terminate if and when the Merger
Agreement is terminated according to its terms.
Very truly yours,
____________________________
Name:
[add below the signatures of all
registered owners of shares deemed
beneficially owned by the affiliate]
____________________________
Name:
____________________________
Name:
____________________________
Name:
Please indicate your agreement with the foregoing by signing the
acknowledgment below and returning this letter agreement to the undersigned,
whereupon this letter agreement shall become an effective agreement between
Xxxx-XxXxx and the undersigned.
Acknowledged this ___ day of
___________, 199_.
XXXX-XxXXX CORPORATION
By:_____________________
Name:
Title:
115
