SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
DEKALB Energy Company
(Name of Issuer)
Class A Common Stock, no par value
(Title of Class of Securities
244874 20 2
(CUSIP Number)
Steven W. Thornton
BARNES & THORNBURG
1313 Merchants Bank Building
11 South Meridian Street
Indianapolis, Indiana 46204
317-638-1313
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 21, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this
statement [ ]. (A fee is not required only if the filing person:
(1) has a previous statement on file reporting beneficial
ownership of more than five percent of the class of securities
described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
CUSIP No. 244874 20 2
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
John T. Roberts
S.S.N. ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions)
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
00
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF 131,180
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 131,180
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
274,673
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
CUSIP No. 244874 20 2
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
Robin Richey Roberts
S.S.N. ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions)
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
00
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF 143,493
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 143,493
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
274,673
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
Item 1. Security and Issuer
This statement relates to the Class A Common Stock, no par
value, of DEKALB Energy Company, a Delaware corporation
("Energy"). The principal executive offices of Energy are
located at 700 4th Avenue, S.W., South Tower, Calgary, Alberta,
Canada T2P3V4.
Item 2. Identity and Background
This statement is filed jointly by John T. Roberts and Robin
Richey Roberts to report the beneficial ownership of shares of
Class A Common Stock of Energy. John T. Roberts and Robin Richey
Roberts are both United States citizens whose address is 2090
Mulsanne Drive, Zionsville, Indiana 46077. John T. Roberts and
Robin Richey Roberts are husband and wife.
John T. Roberts is Chief Financial Officer and Treasurer of
Quest Environmental Resources Corporation. He is a director of
DEKALB Genetics Corporation ("Genetics"). Genetics was a wholly-
owned subsidiary of Energy prior to the pro rata distribution on
August 31, 1988 of all of the outstanding shares of capital stock
of Genetics to the stockholders of Energy. The principal
business of Genetics is the research, development, production and
sale of agricultural seed, swine and poultry breeding stock. The
principal executive offices of Genetics are located at 3100
Sycamore Road, DeKalb, Illinois 60015. Robin Richey Roberts is
a homemaker.
During the last five years neither John T. Roberts nor Robin
Richey Roberts has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors). During
the last five years neither John T. Roberts nor Robin Richey
Roberts has been a party to any civil proceeding of a judicial or
administrative body of competent jurisdiction, as a result of
which either of them was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws
or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Not applicable.
Item 4. Purpose of Transaction.
The purpose of this Amendment No. 1 is to report that on
December 21, 1994, Energy entered into an Agreement and Plan of
Merger (the "Merger Agreement") among Apache Corporation, XPX
Acquisitions, Inc. ("Sub") a wholly owned subsidiary of Apache,
and Energy providing for the merger of Sub into Energy in a
transaction under Delaware Law by which Energy would become a
wholly owned subsidiary of Apache.
Pursuant to the requirements of the Merger Agreement, the
undersigned and certain other stockholders of Energy entered into
Stockholder Agreements with Apache. The Stockholder Agreements
provide generally, among other things, that each stockholder has
agreed to vote those shares of Class A Stock of Energy identified
in the schedule to his Stockholder Agreement in favor of the
Merger and against any action which would violate the Merger
Agreement or any other transaction involving a change in control
of Energy. The Stockholder Agreement provides further that the
undersigned will not solicit, initiate, or take any action that
is reasonably likely to lead to any Takeover Proposal (as defined
in the Stockholder Agreement) from a third party; not to transfer
the shares of Class A Common Stock subject to the Agreement; and
to refrain from certain other activities inconsistent with the
foregoing.
The Stockholder Agreement by its terms shall terminate if
the Merger Agreement is terminated in accordance with its terms.
The Stockholder Agreements relate in the aggregate to in
excess of fifty percent of the outstanding shares of Class A
Common Stock of Energy.
A copy of the Form of Stockholder Agreement is attached
hereto as Exhibit A.
Other than as set forth above, neither John T. Roberts nor
Robin Richey Roberts has any plans or proposals which relate to
or would result in (a) the acquisition of additional securities
of Energy (except that certain trusts described herein may
acquire by gift additional shares of Class A Common Stock of
Energy) or the disposition of securities of Energy, (b) an
extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving Energy or any of its
subsidiaries, (c) a sale or transfer of a material amount of
assets of Energy or any of its subsidiaries, (d) any change in
the present board of directors or management of Energy, including
any plans or proposals to change the number or term of directors
or to fill any existing vacancies on the board, (e) any material
change in the present capitalization or dividend policy of
Energy, (f) any other material change in Energy's business or
corporate structure, (g) changes in Energy's character, by-laws
or other actions which may impede the acquisition of control of
Energy by any person, (h) causing the Class B Common Stock of
Energy to cease to be authorized to be quoted on the National
Association of Securities Dealers Automated Quotation System (i)
a class of equity securities of Energy becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934, or (j) any action similar to any
of those enumerated above.
Both John T. Roberts and Robin Richey Roberts are holding
all the shares of Class A Common Stock of Energy reported hereby
for investment.
Item 5. Interest in Securities of the Issuer
(a)(i) At the date hereof, John T. Roberts
beneficially owned 274,673 shares of Class A Common
Stock of Energy, which represented approximately 11.8%
of the issued and outstanding shares of Class A Common
Stock of Energy as of January 31, 1994. John T.
Roberts holds title to 117,580 of such shares as sole
trustee of a trust of which he is the beneficiary. He
holds title to 13,600 of such shares as sole trustee of
trusts of which certain of his children are the
beneficiaries. Of the remaining shares of Class A
Common Stock of Energy which are reported in this
statement as beneficially owned by John T. Roberts (i)
117,500 shares are held by a trust of which John T.
Roberts is the beneficiary and of which Robin Richey
Roberts is the sole trustee, (ii) 23,717 shares are
held by trusts of which children of John T. Roberts and
Robin Richey Roberts are the beneficiaries and of which
Robin Richey Roberts is the sole trustee, and (iii)
2,276 shares are owned by Robin Richey Roberts.
Although John T. Roberts has no voting or investment
power with respect to such 143,493 shares, such shares
are included in this statement as beneficially owned by
him.
(a)(ii) At the date hereof, Robin Richey Roberts
beneficially owned 274,673 shares of Class A Common
Stock of Energy, which represented approximately 11.8%
of the issued and outstanding shares of Class A Common
Stock of Energy as of January 31, 1994. Of those
shares (i) 117,500 shares are held by a trust of which
John T. Roberts is the beneficiary of which Robin
Richey Roberts is the sole trustee, (ii) 23,717 are
held by a trust of which children of John T. Roberts
and Robin Richey Roberts are the beneficiaries and of
which Robin Richey Roberts is the sole trustee, and
(iii) 2,276 shares are owned by Robin Richey Roberts.
Of the remaining shares of Class A Common Stock of
Energy which are reported in this statement as
beneficially owned by Robin Richey Roberts (i) 117,580
shares are held by a trust of which John T. Roberts is
the beneficiary and sole trustee, and (ii) 13,600
shares are held by trusts of which children of John T.
Roberts and Robin Richey Roberts are the beneficiaries
and of which John T. Roberts is the sole trustee.
Although Robin Richey Roberts has no voting or
investment power with respect to such 131,180 shares,
such shares are included in this statement as
beneficially owned by her.
(b)(i) At the date hereof, John T. Roberts had
sole voting and investment power with respect to
131,180 of the shares of Class A Common Stock of Energy
reported herein. As reported in Item 5(a)(i) above,
John T. Roberts has no voting or investment power with
respect to the remaining 143,493 shares of Class A
Common Stock of Energy reported in this statement.
(b)(ii) At the date hereof, Robin Richey Roberts
has sole voting and investment power with respect to
143,493 of the shares of Class A Common Stock of Energy
reported herein. As reported in Item 5(a)(ii) above,
Robin Richey Robert has no voting or investment power
with respect to the remaining 131,180 shares of Class A
Common Stock of Energy reported in this statement.
(c) Other than the transactions described in Item
4 above, neither John T. Roberts nor Robin Richey
Roberts has effected a transaction in the Class A
Common Stock of Energy in the past sixty days.
(d) Other than John T. Roberts and Robin Richey
Roberts, no other person has the right to receive or
the power to direct the receipt of dividends from, or
the proceeds from the sale of the shares of Class A
Common Stock reported herein.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
See Item 4 above.
Item 7. Material to be Filed as Exhibits.
Exhibit A - Form of Stockholder Agreement.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated this 23rd day of December, 1994.
/s/ John T. Roberts
______________________________
John T. Roberts
/s/ Robin Richey Roberts
_______________________________
Robin Richey Roberts
EXHIBIT A
STOCKHOLDER AGREEMENT
This Stockholder Agreement ("Agreement") is entered into
effective for all purposes as of December ___, 1994, by and
between APACHE CORPORATION, a Delaware corporation ("Parent"),
and the undersigned (the "Stockholder", and together with the
other persons who execute agreements in the same form as this
Agreement, the "Signatory Stockholders").
WHEREAS, Parent, XPX ACQUISITIONS, INC., a Delaware
corporation wholly owned by Parent ("Sub"), and DEKALB ENERGY
COMPANY, a Delaware corporation (the "Company"), are
simultaneously entering into an Agreement and Plan of Merger,
(the "Merger Agreement"), pursuant to which Sub will merge with
and into the Company (the "Merger"); and
WHEREAS, as a condition to their willingness to enter into
the Merger Agreement, Parent and Sub have required that each of
the Signatory Stockholders enter into, and each of the Signatory
Stockholders has agreed to enter into, this Agreement or an
agreement in the same form as this Agreement (together, the
"Stockholder Agreements"); and
WHEREAS, the Board of Directors of the Company has, prior to
the execution of the Merger Agreement and the Stockholder
Agreements, approved the Merger Agreement and the Merger;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the
parties agree as follows:
ARTICLE 1
AGREEMENT TO SUPPORT MERGER
Section 1.1 Voting. The Stockholder hereby agrees that,
during the term that this Agreement is in effect, at any meeting
of the stockholders of the Company, however called, or in
connection with any written consent of the stockholders of the
Company, the Stockholder shall vote (or cause to be voted) all
voting Shares (as defined in Section 2.1) held of record (or
beneficially) by the Stockholder:
(a) in favor of the Merger and the adoption of the Merger
Agreement;
(b) against any action or agreement that would result in a
breach of any covenant, representation or warranty, or any other
obligation or agreement, of the Company under the Merger
Agreement; or
(c) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement):
(i) any extraordinary corporate transaction, such
as a merger, consolidation or other business
combination involving the Company or any of its
subsidiaries (as defined in the Merger Agreement);
(ii) a sale, lease or transfer of a material
amount of assets of the Company or any of its
subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its
subsidiaries;
(iii) any change in the Board of Directors of the
Company;
(iv) any change in the present capitalization of
the Company or any amendment to the Company's
Certificate of Incorporation or By-laws;
(v) any change in the Company's corporate
structure or business; or
(vi) any other action that is intended, or that
could reasonably be expected, to impede, interfere
with, delay, postpone or discourage, or adversely
affect the contemplated economic benefits to Parent of,
the Merger and the actions or transactions contemplated
by the Merger Agreement or this Agreement.
The Stockholder further agrees that the Stockholder will not
enter into any agreement or understanding with any person or
entity prior to the termination of this Agreement that is in any
manner inconsistent with the provisions of this Section 1.1.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties. The Stock-
holder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. The Stockholder is the record and
beneficial owner of the number of shares of voting Class A Stock,
no par value, of the Company ("Class A Stock") and the number of
shares of Class B (nonvoting) Stock, no par value, of the Company
("Class B Stock"; the Class A Stock and Class B Stock,
collectively, the "Common Stock") as set forth on Schedule A
hereto (the "Existing Shares" and, together with any shares of
Common Stock of the Company acquired by the Stockholder hereafter
and prior to the termination of this Agreement, whether upon
exercise of options, conversion of convertible securities,
purchase, exchange or otherwise, the "Shares"). On the date
hereof, the Existing Shares constitute all of the shares of
Common Stock of the Company owned of record or beneficially by
the Stockholder. Except as described on Schedule A attached
hereto, the Stockholder has sole voting power and sole power of
disposition, sole power to demand an appraisal of any Existing
Shares entitled to appraisal pursuant to Section 262 of the
Delaware General Corporation Law and sole power to engage in the
actions set forth herein, including those set forth in Article 3
hereof, in each case with respect to all of the Existing Shares,
with no restrictions on such rights except pursuant to the terms
of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the
legal capacity, power and authority to enter into and perform all
of the Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the
Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets are or may be bound,
including, without limitation, any trust agreement, voting
agreement, irrevocable proxy, stockholders agreement or voting
trust. This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding
agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms. There is no
beneficiary, or holder of a voting trust certificate or other
interest, of any trust of which the Stockholder is a trustee
whose consent is required for the execution and delivery of this
Agreement or the consummation of the transactions contemplated
hereby with respect to any Existing Shares. If the Shares
constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid
and binding agreement of, each person having community property
rights in the Shares, enforceable against such person in
accordance with its terms.
(c) No Conflicts. Except pursuant to the Securities
Exchange Act of 1934, as amended, no filing with, and no permit,
authorization, consent or approval of, any state or federal
public body or authority or any other person (or entity) is
necessary for the execution of this Agreement by the Stockholder
and the performance by the Stockholder of the actions
contemplated hereby. Neither the execution and delivery of this
Agreement by the Stockholder nor the consummation by the
Stockholder of the transactions contemplated hereby nor
compliance by the Stockholder with any of the provisions hereof
will (i) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation,
material modification or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
the Stockholder is a party or by which the Stockholder or any of
the Stockholder's properties or assets are or may be bound or
(ii) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to the Stockholder or any
of the Stockholder's properties or assets.
(d) No Adverse Claims. The Shares and the certificates
representing such Shares are now and at all times during the term
of this Agreement will be held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and
clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or
proxies arising under this Agreement.
(e) No Brokers. No broker, investment banker, financial
advisor or other person is entitled to receive from the Company
or any subsidiary any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the
transactions contemplated hereby based on arrangements made by or
on behalf of the Stockholder.
(f) Material Reliance. The Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to
enter into, the Merger Agreement in material reliance upon the
Stockholder's execution and delivery of this Agreement.
(g) No Intention to Dispose. The Stockholder has no plan
or intention to, directly or indirectly, sell, exchange, or
otherwise dispose of, reduce the risk of loss by short sale or
otherwise, or enter into any contract or other arrangement with
respect to, or consent to, the sale, exchange or other
disposition of any interest in any shares of Parent Common Stock
(as defined in the Merger Agreement) received pursuant to the
Merger. The Stockholder acknowledges that the Stockholder is
giving this representation to enable Mayor, Day, Caldwell &
Keeton, L.L.P. and Sidley and Austin to opine that the Merger
constitutes a reorganization within the meaning of Section 368(a)
of the Code and further recognizes that significant adverse tax
consequences might result if such representation is not true.
The Stockholder understands and agrees that, in connection with
the Merger, the Stockholder will give written notice to the
Company and Parent in the event that, at the Effective Time of
the Merger (as defined in the Merger Agreement) there is any
change in any of the representations of the Stockholder set forth
in this Section 2.1(g).
ARTICLE 3
CERTAIN COVENANTS AND AGREEMENTS
Section 3.1 Certain Covenants of Stockholder. Except in
accordance with the terms of this Agreement, during the term of
this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) No Solicitation.
(X) The Stockholder will immediately cease and
cause to be terminated all existing discussions and
negotiations, if any, with any parties conducted
heretofore by the Stockholder with respect to any
Takeover Proposal. As used in this Agreement,
"Takeover Proposal" means any tender offer or exchange
offer for 20% or more of the outstanding shares of
Class A Stock or Class B Stock or any proposal or offer
for a merger, consolidation, amalgamation or other
business combination involving the Company or its
subsidiaries or any equity securities (or securities
convertible into equity securities) of the Company, or
any proposal or offer to acquire in any manner a 20% or
greater equity or beneficial interest in, or a material
amount of the assets or value of, the Company or its
subsidiaries, other than pursuant to the transactions
contemplated by the Merger Agreement.
(Y) The Stockholder will not, and will not permit
any of the Stockholder's representatives or agents to,
directly or indirectly, (i) (A) solicit, (B) initiate
or (C) (excluding any action referred to in clauses
(ii) and (iii) of this sentence) encourage or take any
action to facilitate the making of, any offer or
proposal that constitutes or that is reasonably likely
to lead to any Takeover Proposal, (ii) participate in
any discussions (other than as necessary to clarify the
terms and conditions of any unsolicited offer,
including any financing or other contingencies and
other relevant facts with respect thereto) or
negotiations regarding any Takeover Proposal (other
than with the Stockholder's legal counsel, other
Signatory Stockholders or officers or directors of the
Company) or (iii) furnish to any person (other than
Parent or its representatives) any nonpublic
information or nonpublic data regarding the Company.
The Stockholder will notify Parent or officers or
directors of the Company orally and in writing of any
such inquiries, offers or proposals to the Stockholder
(including the terms and conditions of any offer or
proposal and the identity of the person making any
inquiry, offer or proposal) as promptly as possible and
in any event within 24 hours after receipt thereof.
(b) Restriction on Transfer; Proxies and Non-Interference;
Restriction on Withdrawal. The Stockholder shall not, directly
or indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of (or in
any other way reduce the Stockholder's risk of
ownership in), or enter into any contract, option or
other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of
(or in any other way reduce the Stockholder's risk of
ownership in), any or all of the Shares or any other
equity securities of the Company or any interest
therein;
(ii) except as contemplated by this Agreement,
grant any proxies or powers of attorney, deposit any
Shares into any voting trust or enter into any voting
agreement with respect to any Shares;
(iii) convert any Shares that are of Class A Stock
into Class B Stock; or
(iv) take any action that would make any
representation or warranty of the Stockholder contained
herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing
the Stockholder's obligations under this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby
waives any and all rights of appraisal or rights to require the
Company to purchase any of the Shares that the Stockholder may
have under the Delaware General Corporation Law.
Section 3.2 Certain Agreements with Respect to Shares for
Purposes of Rule 145. If the Stockholder may be deemed to be an
"affiliate" of the Company pursuant to Rule 145 under the
Securities Act of 1933, as amended, the Stockholder has
delivered, or agrees to deliver to the Parent prior to the
closing of the Merger, an Affiliate Agreement in the form
attached to the Merger Agreement as Exhibit A with respect to the
Shares and future transactions with respect to Parent Shares by
the Stockholder ("Affiliate Agreement"). Each representation of
the Stockholder made in Section 2.1(b) and Section 2.1(c) hereof
with respect to this Agreement is hereby confirmed to be true and
correct with respect to the Affiliate Agreement, if any.
Section 3.3 Binding Obligations. The Stockholder agrees
that this Agreement and the Stockholder's obligations hereunder
and, if applicable, under the Affiliate Agreement shall attach to
the Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of the Shares shall pass,
whether by operation of law or otherwise, including without
limitation the Stockholder's heirs, guardians, administrators or
successors.
Section 3.4 Stop Transfer. The Stockholder agrees with,
and covenants to, Parent that the Stockholder shall not request
that the Company register any transfer of any certificate
representing any of the Shares, if such transfer would violate
any provision of this Agreement.
ARTICLE 4
TERMINATION
Section 4.1 Termination. This Agreement shall terminate
if the Merger Agreement is terminated in accordance with its
terms other than as a result of the effectiveness of the Merger.
Such termination shall not affect the rights of Parent for any
breach of any covenants, agreements, representations or
warranties herein by the Stockholder.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Entire Agreement; Assignment. This Agreement
and the Affiliate Agreement, if applicable, executed by the
Stockholder, (i) constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and
supersede 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 without the prior written consent of the other
party; provided that Parent may assign, in its sole discretion,
its rights and obligations hereunder and thereunder 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. Subject to the
preceding sentence, this Agreement and the Affiliate Agreement,
if applicable, shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, heirs,
personal representatives, legal representatives and permitted
assigns.
Section 5.2 Amendments. This Agreement may not be
modified, amended, altered or supplemented, except upon the
execution and delivery of a written agreement executed by the
parties hereto. The Merger Agreement may be amended in
accordance with the terms thereof, and each reference herein to
the Merger Agreement shall mean the Merger Agreement as amended,
provided that any such amendment that changes the Exchange Ratio
as provided in Section 1.5 of the Merger Agreement or that in any
way materially adversely affects the rights of the stockholders
of the Company shall have been approved by the Stockholder.
Section 5.3 Stockholder Capacity. If the Stockholder is
or becomes during the term hereof a director of the Company, then
the Stockholder makes no agreement or understanding herein in his
or her capacity as a director. The Stockholder signs solely in
his, her or its capacity as the record and beneficial owner of
the Shares.
Section 5.4 Written Notices. All written notices,
requests, claims, demands and other communication hereunder shall
be given (and shall be deemed to have been duly received if so
given) by hand delivery, telegram, telex or telecopy, or by mail
(registered or certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal Express,
providing proof of delivery, to the respective parties at the
following addresses:
(a) if to Parent, to
Apache Corporation
2000 Post Oak Blvd., Ste. 100
Houston, Texas 77056
Attention: James R. Bauman, Senior Vice President
Telephone: (713) 296-6206
Telecopy: (713) 296-6457
with copies (which shall not constitute notice) to:
Apache Corporation
2000 Post Oak Blvd., Ste. 100
Houston, Texas 77056
Attention: Zurab S. Kobiashvili, General Counsel
Telephone: (713) 296-6204
Telecopy: (713) 296-6458
Geoffrey K. Walker
Mayor, Day, Caldwell & Keeton, L.L.P.
700 Louisiana, Suite 1900
Houston, Texas 77002-2778
Telephone: (713) 225-7023
Telecopy: (713) 225-7047
(b) if to the Company, to
DEKALB Energy Company
700-9th Avenue, SW
10th Floor
Calgary, Alberta,
Canada T2P 3V4
Attention: John H. Witmer, Jr., General Counsel
Telephone: (403) 261-1200
Telecopy: (403) 266-5987
with a copy (which shall not constitute notice) to:
Thomas E. Swaney
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Telephone: (312) 853-7476
Telecopy: (312) 853-7036
(c) if to the Stockholder, to the address set forth on the
signature page hereof or to such other address as the person to
whom notice is given may have previously furnished to the others
in writing in the manner set forth above.
Section 5.5 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Section 5.6 Specific Performance. Each of the parties
hereto recognizes and acknowledges that a breach by it of any
covenants or agreements contained in this Agreement will cause
the other party to sustain damages for which there would be no
adequate remedy at law for money damages, and therefore each of
the parties hereto agrees that in the event of any such breach
the aggrieved party 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
such party may be entitled, at law or in equity.
Section 5.7 Counterparts. This Agreement may be executed
in multiple counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same
Agreement.
Section 5.8 Descriptive Heading. 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.
Section 5.9 Further Assurances. From time to time, at
Parent's request and without further consideration, the
Stockholder shall execute and deliver such additional documents
and take all such further action as may be necessary or
appropriate to consummate and make effective, in the most
expeditious manner practicable, the agreements, covenants and
transactions contemplated by this Agreement.
Section 5.10 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, such invalidity, illegality or unenforceability
will not affect any other provision or portion of any provision,
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.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered effective for all purposes as
of the date first above written.
APACHE CORPORATION
By: ______________________________
Name: ____________________________
Title: ____________________________
STOCKHOLDER:
Signature: ________________________
Printed Name: _____________________
Address: _________________________
___________________________________
___________________________________
