1
EXHIBIT (d)(3)
TENDER AGREEMENT
TENDER AGREEMENT (this "AGREEMENT"), dated as of January 18, 2001, by
and between Ocean Energy, Inc., a Texas corporation ("PARENT"), OEI Acquisition
Corp. (the "PURCHASER"), a Nevada corporation and a wholly-owned subsidiary of
Parent, and the stockholders set forth in Schedule I hereto (each, a
"STOCKHOLDER" and collectively, the "STOCKHOLDERS").
WHEREAS, concurrently herewith, Parent, Purchaser and Texoil, Inc. (the
"COMPANY"), a Nevada corporation, are entering into an Agreement and Plan of
Merger of even date herewith (the "MERGER AGREEMENT") (capitalized terms used
but not defined herein shall have the meanings set forth in the Merger
Agreement), pursuant to which Purchaser has agreed to commence a tender offer
(the "OFFER") to purchase (i) all of the outstanding shares (the "COMMON
SHARES") of the Company's common stock, par value $0.01 per share ("COMPANY
COMMON STOCK"), at a price per Common Share of $8.25 (such price or such higher
price as may be paid for Common Shares in the Offer, the "OFFER PRICE") net to
the seller in cash and (ii) all of the outstanding shares (the "PREFERRED
SHARES") of the Company's Series A Convertible Preferred Stock, par value $0.01
per share ("COMPANY PREFERRED STOCK"), at a price per Preferred Share of $18.04
(such price or such higher price as may be paid for Preferred Shares in the
Offer, the "PREFERRED OFFER PRICE") net to the seller in cash;
WHEREAS, as of the date hereof, each Stockholder owns, beneficially and
of record, the outstanding shares of Common Stock, Preferred Stock, the options
to purchase Common Stock the ("COMPANY OPTIONS") and warrants convertible into
Common Stock (the "COMPANY WARRANTS") set forth opposite such Stockholder's name
on Schedule I hereto; provided, however, that any shares held in a fiduciary
capacity for the benefit of others by any Stockholder that is a financial
institution or its Affiliates shall not be subject to this Agreement;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement and make the Offer, Parent and Purchaser have required that each
Stockholder agree, and in order to induce Parent and Purchaser to enter into the
Merger Agreement, each Stockholder hereby agrees, (i) to tender pursuant to the
Offer the Common Shares and the Preferred Shares now legally and/or beneficially
owned ("OWNED") by such Stockholder (the "OWNED SHARES"), together with any
Shares acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of Company Options, Company Warrants, conversion of
convertible securities or otherwise (collectively, the "TENDER SHARES") on the
terms and subject to the conditions provided for in this Agreement and (ii) to
enter into the other agreements set forth herein; and
WHEREAS, there are no prior agreements, arrangements or understandings
with respect to the subject matter hereof or the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
2
SECTION 1. Agreement to Tender.
1.1 Tender. Each Stockholder hereby agrees, severally (and not
jointly), to validly tender (or cause the record owner of such Tender Shares to
validly tender), pursuant to and in accordance with the terms of the Offer, as
soon as practicable after commencement of the Offer but in no event later than
ten Business Days after the date of commencement of the Offer, its Tender Shares
by physical delivery of the certificates therefor and to not withdraw such
Tender Shares, except following termination of the Offer pursuant to its terms.
Any Preferred Shares tendered pursuant to this Section 1.1 and acquired pursuant
to the Offer will include, by way of amplification and not limitation, all
rights associated with such Shares, including but not limited to all cash and
non-cash dividends, distributions, rights, other Shares or other securities
issued or issuable in respect thereof on or after the date of this Agreement
(including, without limitation, with respect to the Preferred Shares, rights to
dividends pursuant to Section 4.17 of the Preferred Stock Purchase Agreement).
Each Stockholder hereby agrees and acknowledges that it will have no rights to
dividends on its Preferred Shares payable on or at any time subsequent to the
purchase of such Preferred Shares pursuant to the Offer. Each Stockholder
further acknowledges and agrees that Parent's and Purchaser's obligation to
accept for payment and pay for the Tender Shares is subject to the terms and
conditions of the Offer. Each Stockholder hereby permits Parent and Purchaser to
publish and disclose in the Offer Documents and, if approval of the Company's
stockholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and ownership of
the Tender Shares and the nature of its commitments, arrangements and
understandings under this Agreement.
1.2 No Inconsistent Arrangements. Each Stockholder severally (and not
jointly) hereby covenants and agrees that, except as contemplated by this
Agreement and the Merger Agreement, it shall not (i) except to Purchaser,
transfer (which term shall include, without limitation, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the Company
Options, Company Warrants or Tender Shares or any interest therein, (ii) except
with Parent, enter into any contract, option or other agreement or understanding
with respect to any transfer of any or all of the Company Options, Company
Warrants or Tender Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to the Company
Options, Company Warrants or Tender Shares, (iv) deposit any Company Options,
Company Warrants or Tender Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Tender Shares, (v) with respect to
any Stockholder that is a holder of Company Preferred Stock, (A) elect, under
Section 3(C) of the Designation of Preferences, Limitations and Rights of Series
A Convertible Preferred Stock of the Company (the "DESIGNATION"), to have the
Offer or Merger or any of the transactions contemplated hereby or thereby
treated as a Liquidation (as defined in the Designation) or (B) convert any
Preferred Shares held by such Stockholder into any other series or class of
securities of the Company or (vi) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement or which
would make any representation or warranty of such Stockholder hereunder untrue
or incorrect.
1.3 No Solicitation. Each Stockholder severally (and not jointly)
hereby agrees that it shall not, and shall not permit or authorize any of its
affiliates, representatives or agents to, directly or indirectly, encourage,
solicit, explore, participate in or initiate discussions or
2
3
negotiations with, or provide or disclose any information to, any Person or
group (other than Parent, Purchaser or any of their affiliates or
representatives) concerning any Acquisition Proposal or enter into any
agreement, arrangement or understanding requiring the Company to abandon,
terminate or fail to consummate the Offer, the Merger or any other transactions
contemplated by the Merger Agreement. Each Stockholder will immediately cease
any existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any Acquisition Proposal. From and after the
execution of this Agreement, each Stockholder shall immediately advise Parent in
writing of the receipt, directly or indirectly, of any inquiries, discussions,
negotiations or proposals relating to an Acquisition Proposal, identify the
offeror and furnish to Parent a copy of any such proposal or inquiry, if it is
in writing, or a written summary of any oral proposal or inquiry relating to an
Acquisition Proposal. Such Stockholder shall promptly advise Parent in writing
of any development relating to such proposal, including the results of any
discussions or negotiations with respect thereto. Any action taken by the
Company or any member of the Board of Directors of the Company including, if
applicable, any representative of any Stockholder acting in such capacity, in
accordance with the second sentence of Section 6.08 of the Merger Agreement
shall be deemed not to violate this Section 1.3.
1.4 Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, each Stockholder severally (and not jointly) hereby agrees to
use all 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 and make effective the
transactions contemplated by this Agreement. Each Stockholder shall promptly
consult with Parent and provide any necessary information and material with
respect to all filings made by such Stockholder with any Governmental Authority
in connection with this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby.
1.5 Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have.
1.6 Payment for Tender Shares in Excess of the Offer Price. Each
Stockholder severally (and not jointly) hereby agrees that, if the Merger
Agreement is terminated pursuant to Section 8.01(e) or (f) of the Merger
Agreement, fifty percent (50%) of any incremental value such Stockholder
actually receives for its equity in the Company (including but not limited to
any Shares, Company Options and Company Warrants beneficially Owned by such
Stockholder) resulting from or attributable to an Acquisition Proposal (other
than with Parent or Purchaser) that is entered into or consummated within six
months of the termination of the Merger Agreement that exceeds $8.25 per Common
Share or $18.04 per Preferred Share (100% of such excess amount with respect to
the Common Shares, Company Options, Company Warrants and the Preferred Shares,
as applicable, collectively referred to as the "EXCESS AMOUNT") shall belong to
Parent. Each Stockholder severally (and not jointly) accordingly agrees to hold
in trust for the benefit of Parent, and to remit to Parent (in the same form of
consideration as received by the Stockholder) within three Business Days of any
receipt thereof, fifty percent (50%) of any Excess Amount or Amounts that such
Stockholder actually receives from any Person. In the event of any change in the
number of issued and outstanding Shares by reason of any stock dividend,
subdivision, merger, recapitalization, combination, conversion or exchange of
shares, or any other change in the corporate or capital structure of the Company
(including, without
3
4
limitation, the declaration or payment of a dividend of cash or securities)
which would have the effect of diluting or otherwise adversely affecting
Parent's rights and privileges under this Section 1.6, the Excess Amount due
hereunder shall be appropriately and equitably adjusted to restore to Parent its
rights and privileges under this Section 1.6. Each Stockholder severally (and
not jointly) hereby agrees to reimburse Parent and Purchaser for any fees and
expenses (including reasonable attorneys fees) incurred by Parent and Purchaser
in connection with any successful litigation, dispute or other attempt to
recover the portion of the Excess Amount due from such Stockholder pursuant to
this Section 1.6 in the event that Stockholder fails to deliver such Excess
Amount to Parent upon written demand.
1.7 Transfer of Company Options and Company Warrants. Each Stockholder
holding Company Options or Company Warrants severally (and not jointly) agrees
that so long as this Agreement shall remain in effect, such Stockholder (for
purposes of this Section 1.7, an "OPTIONHOLDER") will not transfer or exercise
any Company Options or Company Warrants held by such Optionholder except to an
Affiliate of such Stockholder that becomes a party to this Agreement or a
similar agreement; provided, however, that each Optionholder agrees to accept at
the Effective Time (as defined in the Merger Agreement) an amount in respect of
such Company Options equal to the Company Option Payments and an amount in
respect of such Company Warrants equal to the Company Warrant Payments, and each
such Company Option and Company Warrant shall thereafter be canceled. Nothing in
this Agreement shall limit the ability of the holders of Company Options or
Company Warrants to exercise such securities in accordance with their terms,
provided that such holder tenders the shares of Company Common Stock issued upon
exercise thereof in the Offer.
SECTION 2. Effectiveness; Termination. This Agreement shall become
effective as to each Stockholder upon its execution by such Stockholder, Parent
and Purchaser and upon the execution of the Merger Agreement. This Agreement may
be terminated as to each Stockholder at any time by mutual written consent of
such Stockholder, Parent and Purchaser. Other than the provisions of Section 1.6
and Section 6, this Agreement shall terminate, without any action by the parties
hereto, on the date on which the Merger Agreement terminates in accordance with
its terms.
SECTION 3. Representations and Warranties.
3.1 Representations and Warranties of Stockholders. Each Stockholder
hereby represents and warrants, severally (and not jointly), to Parent and
Purchaser as follows:
(a) Title. Such Stockholder has good and valid title to the Owned
Shares of such Stockholder, free and clear of any lien, pledge, charge,
encumbrance or claim of whatever nature and, upon the purchase of the Tender
Shares by Purchaser, such Stockholder will deliver good and valid title to the
Tender Shares, free and clear of any lien, charge, encumbrance or claim of
whatever nature.
(b) No Other Rights. Except for this Agreement and as shown on
Schedule I hereto, there are no outstanding options, warrants or rights to
purchase or acquire the Shares of such Stockholder.
4
5
(c) Ownership of Shares. On the date hereof, the Owned Shares of
such Stockholder are owned of record or beneficially by such Stockholder and, on
the date hereof, such Owned Shares of such Stockholder constitute all of the
Shares owned of record or beneficially by such Stockholder. Such Stockholder has
sole power of disposition with respect to all of the Owned Shares of such
Stockholder, with no restrictions, subject to applicable federal securities
laws, on such Stockholder's rights of disposition pertaining thereto.
(d) Power; Binding Agreement. Such Stockholder has the legal
capacity, and all the necessary power and authority to enter into and perform
all of its obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, stockholders agreement or voting trust. This Agreement has
been duly and validly executed and delivered by such Stockholder, and assuming
this Agreement has been duly and validly authorized, executed and delivered by
each party hereto other than such Stockholder, this Agreement constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except that (i) such enforcement may
be subject to applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws, now or hereafter in effect, affecting creditor rights generally
and (ii) the remedy of specific performance and injunctive and other equitable
relief may be subject to equitable defenses and to the discretion of the court.
(e) No Conflicts. Other than in connection with or in compliance
with the provisions of the Exchange Act, no authorization, consent or approval
of, or filing with, any court or any public body or authority is necessary for
the consummation by such Stockholder of the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien, encumbrance, pledge,
charge or claim upon any of the properties or assets of such Stockholder under,
(i) the certificate of incorporation or other organizational documents of such
Stockholder, if any, or (ii) any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which such Stockholder is a
party or by which its properties or assets are bound.
(f) No Finder's Fees. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
3.2 Representations and Warranties of Parent and Purchaser. Each of
Parent and Purchaser hereby represent and warrant to each Stockholder that the
Offer, the Offer Documents and the transactions contemplated thereby will comply
in all material respects with the provisions of applicable federal securities
laws. Parent and Purchaser further represent that the Offer Documents, on the
date filed with the SEC and on the date first published, sent or given to the
Stockholders, will not 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 made
5
6
therein, in light of the circumstances under which they were made, not
misleading, except that no representation is made by Parent or Purchaser with
respect to information supplied by the Company for inclusion in the Offer
Documents. Each of Parent and Purchaser agree and acknowledge that the
Stockholders are entering into this Agreement in material reliance on this
Section 3.2.
SECTION 4. Additional Shares. Each Stockholder hereby agrees, while
this Agreement is in effect, to promptly notify Parent of the number of any new
Shares acquired by such Stockholder, if any, after the date hereof.
SECTION 5. Further Assurances. From time to time, at the Parent's
request and without further consideration, each Stockholder shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary or desirable to carry out the provisions of this Agreement.
SECTION 6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made by a
Stockholder herein shall terminate upon the termination of this Agreement, other
than such Stockholder's representations and warranties in Sections 3(a) through
(c) which shall survive the termination of this Agreement.
6.2 Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and (ii)
shall not be assigned by operation of law or otherwise, provided that Parent may
assign its rights and obligations hereunder to any direct or indirect wholly
owned subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations.
6.3 Waiver and Amendments. Any provision of this Agreement may be
waived at any time by the party which is entitled to the benefits thereof and
this Agreement may be amended or supplemented at any time. No such waiver,
amendment or supplement shall be effective unless in writing and signed by the
party sought to be bound thereby.
6.4 Notices. All notices or communications hereunder shall be in
writing (including facsimile or similar writing) addressed as follows:
To the Stockholders:
At the addresses set forth on Schedule I hereto.
with a copy to:
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
6
7
To the Parent or Purchaser:
Ocean Energy, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
with a copy to:
Ocean Energy, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Executive Vice President,
General Counsel and Secretary
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: 214-969-4343
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Any such notice or communication shall be deemed given (i) when made, if made by
hand delivery, and upon confirmation of receipt, if made by facsimile, (ii) one
Business Day after being deposited with a next day courier, postage prepaid, or
(iii) three Business Days after being sent certified or registered mail, return
receipt requested, postage prepaid, in each case addressed as above (or to such
other address as such party may designate in writing from time to time).
6.5 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof; provided, however, that the laws of the State of Nevada will
govern the internal affairs of the Company. Each Stockholder, Parent and
Purchaser irrevocably submits to the exclusive jurisdiction of any Texas state
or federal court sitting in the State of Texas in any action arising out of or
relating to this Agreement, hereby irrevocably agrees that all claims in respect
of such action may be heard and determined in such Texas state or federal court,
and hereby irrevocably waives, to the fullest extent it may effectively do so,
the defense of an inconvenient forum to the maintenance of such action or
proceeding.
7
8
6.6 Specific Performance. Each Stockholder recognizes and acknowledges
that a breach by it of any covenants or agreements contained in this Agreement
will cause Parent to sustain damages for which it would not have an adequate
remedy at law, and therefore each Stockholder agrees that in the event of any
such breach Parent shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
6.7 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which shall constitute
one and the same Agreement. Notwithstanding anything in this Agreement to the
contrary, regardless of the number of Stockholders that enter into this
Agreement, all obligations, duties and liabilities of the Stockholders hereunder
shall be several and not joint.
6.8 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
6.10 Expenses. Each of the parties shall pay its own expenses in
connection with the negotiation, execution and performance of this Agreement.
[SIGNATURE PAGES FOLLOW]
8
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
OCEAN ENERGY, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
OEI ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
EL PASO CAPITAL INVESTMENT COMPANY, LLC
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------------
Title: Sr. Managing Director and CFO
----------------------------------
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ X. X. Xxxxx, III
-------------------------------------
X. X. Xxxxx, III
16
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
17
SCHEDULE I
STOCKHOLDER
NAME AND ADDRESS COMMON STOCK PREFERRED STOCK COMPANY OPTIONS COMPANY WARRANTS
---------------- ------------ --------------- --------------- ----------------
El Paso Capital Investment Company LLC -- 152,291 -- --
Attn: Xxxxxx Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Xxxxxx X. Xxxxxx 48,304 6,919 28,083 --
0000 X. Xxxxxxxx Xxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxx 57,257 18,750 22,467 --
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx 50,646 -- 59,317 --
0000 Xxxx Xxx Xxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx 40,000 -- 132,333 --
00000 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
X. X. Xxxxx, III 104,572 -- -- --
c/o Hoehn Motors
0000 Xxxxx Xxx Xxxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx -- 12,500 -- --
Xxxx X. Xxxxxx, Inc.
Wedgewood International Tower
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
