1
EXHIBIT 10.38
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made and entered into effective as of February 20, 1998, among
OEI HOLDING CORPORATION, a Delaware corporation ("Newco"), UNITED MERIDIAN
CORPORATION, a Delaware corporation ("UMC"), and OCEAN ENERGY, INC. a Delaware
corporation ("OEI").
RECITALS
A. Newco, UMC and OEI have entered into that certain Agreement
and Plan of Merger, dated as of December 22, 1997, as amended by that certain
Amendment No. 1 to Agreement and Plan of Merger, dated as of January 7, 1998
(as amended, the "Merger Agreement").
B. Newco, UMC and OEI desire to further amend the Merger
Agreement as set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in the Merger
Agreement and this Amendment, the parties hereto agree as follows:
1. Amendment to Section 1.3 of the Merger Agreement. Section 1.3
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"Section 1.3 Closing. The closing of the Mergers (the
"Closing") will take place at such time and on such date to be
specified by the parties (the "Closing Date"), which date shall be no
later than the second business day after satisfaction or waiver of the
conditions set forth in Article VII, unless another time or date is
agreed to by the parties hereto. The Closing will be held at such
location as is agreed to by the parties hereto."
2. Amendment to Section 1.4 of the Merger Agreement. Section 1.4
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"Section 1.4 Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the
parties shall file a certificate of merger (individually, a
"Certificate of Merger" with respect to each of the Mergers, and
collectively with respect to both Mergers, the "Certificates of
Merger") executed in accordance with the relevant provisions of the
DGCL and shall make all other filings or recordings required under the
DGCL in order to effect both Mergers. The Newco Merger shall become
effective at such
2
time as is specified in the Certificate of Merger for the Newco
Merger, which time shall be at 3:00 p.m. (Houston, Texas time) on the
date of the Closing (the "Newco Effective Time"). The UMC Merger
shall become effective at such time as is specified in the Certificate
of Merger for the UMC Merger, which time shall be at 3:01 p.m.
(Houston, Texas time) on the date of the Closing (the "UMC Effective
Time" or, in some cases, the "Effective Time")."
3. Amendment to Section 3.1 of the Merger Agreement. Section 3.1
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"Section 3.1 Board of Directors of OEI Subsequent to Effective
Time. Immediately subsequent to the UMC Effective Time, the Board of
Directors of OEI shall have 14 members and shall be divided into three
classes, Class I, Class II and Class III, with the term of Class I
expiring at OEI's first annual meeting following the Effective Time,
the term of Class II expiring at OEI's second annual meeting following
the Effective Time and the term of Class III expiring at OEI's third
annual meeting following the Effective Time. Prior to the UMC
Effective Time, (i) the Board of Directors of OEI shall select from
among the current members of the Board of Directors of OEI seven
individuals (the "OEI Director Nominees") for nomination as directors
of OEI, which nominees shall include Xxxxx X. Xxxxxx, and (ii) the
Board of Directors of UMC shall select from among the current members
of the Board of Directors of UMC seven individuals (the "UMC Director
Nominees") for nomination as directors of OEI, which nominees shall
include Xxxx X. Xxxxx. If an individual so selected consents to serve
as a director, such individual shall be elected as a director of OEI,
effective as of the UMC Effective Time, for a term expiring at OEI's
next annual meeting of stockholders following the Effective Time at
which the term of the class to which such director belongs expires,
subject to being renominated as a director at the discretion of OEI's
Board of Directors. Each class shall consist of an equal, or as near
as equal as possible, number of directors (as provided in OEI's
certificate of incorporation and the DGCL) and the specific
designation of UMC Director Nominees and OEI Director Nominees to a
particular class shall be determined by UMC and OEI prior to the UMC
Effective Time; provided, however, that (i) Xxxxx X. Xxxxxx shall be
designated by the Board of Directors of OEI as a Class III Director
and shall serve as President and Chief Executive Officer as of the UMC
Effective Time until the earlier of his resignation or removal or
until his successor is duly elected and qualified in accordance with
the Bylaws of OEI in effect subsequent to the UMC Effective Time and
(ii) Xxxx X. Xxxxx shall be designated by the Board of Directors of
UMC as a Class III Director and shall serve as Chairman of the Board
as of the UMC Effective Time until the earlier of his resignation or
removal or until his successor is duly elected and qualified in
accordance with the Bylaws of OEI in effect subsequent to the UMC
Effective Time. If at any time prior to the UMC Effective Time, any
UMC Director Nominee or OEI Director Nominee shall be unable to serve
as a director at the UMC Effective Time, the respective Board of
Directors that designated such individual as provided herein shall
designate another individual to serve in such individual's place;
provided that in the event Xxxx Xxxxx is unable to serve as Chairman
of the Board, Xxxxx X. Xxxxxx shall serve as Chairman of the Board as
of the Effective Time until his successor is duly elected and
qualified in accordance with the Bylaws of OEI in effect subsequent to
the UMC Effective Time; provided, further, in the event Xxxxx X.
Xxxxxx is unable to serve as President and Chief Executive Officer,
Xxxx Xxxxx
2
3
shall serve as President and Chief Executive Officer of the Company as
of the Effective Time until his successor is duly elected and
qualified in accordance with the Bylaws of OEI in effect subsequent to
the UMC Effective Time."
4. Amendment to Section 3.2 of the Merger Agreement. Section 3.2
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"Section 3.2. Board Committees and Executive Officers. The
committees of the Board of Directors of OEI immediately subsequent to
the UMC Effective Time shall contain an equal number of UMC Director
Nominees and OEI Director Nominees and the composition of such
committees (including chairmen thereof) shall be as designated prior
to the UMC Effective Time until the earlier of the resignation or
removal of any individual so designated or until their respective
successors are duly elected and qualified, as the case may be, it
being agreed that if at any time prior to the UMC Effective Time any
director nominee designated as a member of a committee shall be unable
to serve as a member of a committee (including as a chairman of any
committee) at the UMC Effective Time, the respective Board of
Directors that designated such individual as provided herein (or in
the case of Messrs. Xxxxx and Xxxxxx, the respective Board of
Directors on which they presently serve) shall designate another
individual to serve in such individual's place. The chairman of each
of the Finance and Audit Committees of the Board of Directors of OEI
immediately subsequent to the UMC Effective Time shall be UMC Director
Nominees and the chairman of each of the Nominating and Compensation
Committees of the Board of Directors of OEI immediately subsequent to
the UMC Effective Time shall be OEI Director Nominees. Subsequent to
the UMC Effective Time, those individuals set forth on EXHIBIT B
hereto shall be executive officers of OEI having the titles and
positions set forth opposite their respective names on such Exhibit
until the earlier of the resignation or removal of any such individual
or until their respective successors are duly elected and qualified,
as the case may be. Prior to the UMC Effective Time, OEI and UMC may
mutually agree to designate additional individuals to serve as
executive officers of OEI subsequent to the UMC Effective Time.
Subject to Section 3.1, if any executive officer set forth on EXHIBIT
B or designated in accordance with this Section 3.2 ceases to be a
full-time employee of either OEI or UMC (or otherwise declines to
serve in such designated capacity) at or before the UMC Effective
Time, OEI and UMC will agree upon another person to serve in such
person's stead or agree to leave such office vacant through the UMC
Effective Time."
5. Amendment to Section 4.2(a) of the Merger Agreement. Section
4.2(a) of the Merger Agreement is hereby amended and restated in its entirety
as follows:
"(a) As of the date hereof, the authorized capital stock
of OEI consists of (i) 100,000,000 shares of common stock, par value
$.01 per share ("OEI Common Stock"), of which 22,896,787 shares are
issued and outstanding as of the date of this Agreement, 100 shares
are held as treasury shares, and 3,023,955 shares are reserved for
issuance upon exercise of options under OEI Stock Plans and (ii)
10,000,000 shares of preferred stock, par
3
4
value $.01 per share, which have not yet been issued or designated as
to a series by the Board of Directors of OEI; provided that 2,000,000
of such shares have been or will be designated by OEI as "Series A
Junior Participating Preferred Stock" (the "OEI Junior Preferred") in
connection with the adoption by the Board of Directors of OEI,
concurrently with the authorization of this Agreement, of a
stockholder rights plan (the "OEI Rights Plan") pursuant to which a
preferred share purchase right (an "OEI Right") has been or will be
declared payable as a dividend on all outstanding shares of OEI Common
Stock, which Rights will be issued pursuant to a OEI Rights Agreement
of even date with this Agreement between OEI and Xxxxxx Trust and
Savings Bank (the "OEI Rights Agreement"). All of the aforesaid
outstanding shares of capital stock have been validly issued, are
fully paid and nonassessable, and are free of preemptive rights.
Except as described above, including pursuant to the OEI Rights Plan,
as of the date hereof, there are no shares of capital stock or other
equity securities of OEI outstanding and no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible
into, shares of any capital stock of OEI, or contracts, commitments,
understandings, or arrangements by which OEI is or may become bound to
issue additional shares of its capital stock (other than previously
reserved shares described above) or options, warrants or rights to
purchase or acquire any shares of its capital stock."
6. Effect of Amendment. Except as amended by the foregoing,
the Merger Agreement shall remain in full force and effect.
7. Counterparts. This Amendment may be executed in any number
of identical counterparts, each of which shall be deemed an original for all
purposes.
[The remainder of this page is intentionally left blank.]
4
5
IN WITNESS WHEREOF, the parties have executed this Amendment
as of February 20, 1998.
OEI HOLDING CORPORATION
By: /s/ XXXX X. XXXXX
________________________________
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
UNITED MERIDIAN CORPORATION
By: /s/ XXXX X. XXXXX
________________________________
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
and Chief Executive Officer
OCEAN ENERGY, INC.
By: /s/ XXXXXX X. XXXXXX
________________________________
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President-Administation
and General Counsel
5
