subject to the conditions set forth therein;
1
WHEREAS, Parent desires to acquire 100% of the issued and outstanding shares of
capital stock of the Company on the terms and subject to the conditions set
forth herein; and
WHEREAS, it is intended that the Merger qualify as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code").
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained in this Agreement, and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Parent, Merger Sub and the Company agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement, the capitalized
terms have the meanings ascribed to such terms in Annex A or as otherwise
defined elsewhere in this Agreement.
Section 1.2 Terms Defined Elsewhere. As used in this Agreement, the following
capitalized terms are defined in this Agreement as referenced in the following
table:
Definition
Section
Agreement
Preamble
Antitrust Authority
6.8(b)
Antitrust Laws
6.8(b)
Applicable Date
4.9(a)
Book-Entry Shares
3.3(b)(ii)
Certificate of Merger
2.2(b)
Certificates
3.3(b)(i)
Closing
2.2(a)
Closing Date
2.2(a)
Code
Recitals
Company
Preamble
Company 401(k) Plan
6.9(c)
Company Affiliate
9.10
Company Alternative Acquisition Agreement
6.3(d)(iv)
Company Board
Recitals
Company Board Recommendation
4.3(a)
Company Capital Stock
4.2(a)
Company Change of Recommendation
6.3(d)(vii)
Company Common Stock
3.1(b)(i)
Company Contracts
4.19(b)
Company Disclosure Letter
Article IV
Company Employee
4.10(j)
Company Financial Statements
4.5
Company Independent Petroleum Engineers
4.17(a)(i)
Company Intellectual Property
4.14(a)
Company Material Adverse Effect
4.1
Company Material Leased Real Property
4.15
Company Material Owned Real Property
4.15
2
Definition
Section
Company Material Real Property Lease
4.15
Company Permits
4.9(a)
Company Preferred Stock
4.2(a)
Company Related Party Transaction
4.24
Company Reserve Report
4.17(a)(i)
Company Stockholder Consent Deadline
8.1(b)(iv)
Company Stock Plan
4.2(a)
Company Tax Certificate
6.19(b)
Company Voting Agreements
Recitals
Competition Law Notifications
6.8(b)
Confidentiality Agreement
6.7(a)(iii)
Consent Solicitation Statement/Information Statement/Prospectus
4.8(b)
Creditors' Rights
4.3(a)
D&O Insurance
6.10(d)
DGCL
2.1
Disclosure Letter
Article IV
Dissenting Shares
3.4
Divestiture Action
6.8(b)
Effective Time
2.2(b)
Eligible Share
3.1(b)(i)
e-mail
9.3
End Date
8.1(b)(ii)
Exchange Agent
3.3(a)
Exchange Fund
3.3(a)
Exchange Ratio
3.1(b)(i)
Excluded Share
3.1(b)(iii)
GAAP
4.5
HSR Act
4.3(a)
Indemnified Liabilities
6.10(a)
Indemnified Persons
6.10(a)
Information Statement/Prospectus Distribution Date
6.6(a)
Last Balance Sheet
4.5
Letter of Transmittal
3.3(b)(i)
Material Company Insurance Policies
4.21
Material Parent Insurance Policies
5.21
Merger
Recitals
Merger Consideration
3.1(b)(i)
Merger Sub
Preamble
Merger Sub Board
Recitals
Parent
Preamble
Parent 401(k) Plan
6.9(c)
Parent Affiliate
9.10
Parent Alternative Acquisition Agreement
6.4(d)(iv)
Parent Board
Recitals
Parent Board Recommendation
5.3(a)
Parent Capital Stock
5.2(a)(ii)
Parent Change of Recommendation
6.4(d)(ii)
Parent Charter Amendment
6.22
Parent Common Stock
Recitals
Parent Contracts
5.19(b)
3
Definition
Section
Parent Disclosure Letter
Article V
Parent Independent Petroleum Engineers
5.17(a)(i)
Parent Intellectual Property
5.14(a)
Parent Material Adverse Effect
5.1
Parent Material Leased Real Property
5.15
Parent Material Owned Real Property
5.15
Parent Material Real Property Lease
5.15
Parent Permits
5.9(a)
Parent Preferred