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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
FOREST OIL CORPORATION
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(Name of Issuer)
Common Stock, $.10 par value
---------------------------------------------
(Title of Class of Securities)
346091101
--------------------
(CUSIP Number)
Craig D. Slater Drake S. Tempest, Esq.
The Anschutz Corporation O'Melveny & Myers
2400 Anaconda Tower The Citicorp Center
555 Seventeenth Street 153 East 53rd Street, 54th Floor
Denver, Colorado 80202 New York, New York 10022-4611
(303) 298-1000 (212) 326-2000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 27, 1995
-------------------------------------------------
(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 the statement / /.
(A fee is not required only if the reporting 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.
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* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities
of that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
CUSIP Number 346091101
-----------
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Anschutz Corporation
84-0511138
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /x/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Kansas
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 55,694,444
-----------------------------------------------------
EACH REPORT- 9 SOLE DISPOSITIVE POWER
ING PERSON 0
-----------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
55,694,444
-----------------------------------------------------
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
55,694,444
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.1%
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14 TYPE OF REPORTING PERSON
CO
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Page 2 of 11 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Anschutz Company
84-1179412
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /x/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 55,694,444
-----------------------------------------------------
EACH REPORT- 9 SOLE DISPOSITIVE POWER
ING PERSON 0
-----------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
55,694,444
-----------------------------------------------------
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
55,694,444
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.1%
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14 TYPE OF REPORTING PERSON
CO
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Page 3 of 11 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Philip F. Anschutz
###-##-####
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /x/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 55,694,444
-----------------------------------------------------
EACH REPORT- 9 SOLE DISPOSITIVE POWER
ING PERSON 0
-----------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
55,694,444
-----------------------------------------------------
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
55,694,444
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
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Page 4 of 11 Pages
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This Amendment No. 1 to Schedule 13D (the "Schedule 13D"), which was
filed on May 26, 1995 by The Anschutz Corporation ("TAC"), Anschutz Company
("AC") and Philip F. Anschutz ("Anschutz"), and which relates to shares of
Common Stock, par value $.10 per share ("Common Stock"), of Forest Oil
Corporation (the "Company"), hereby amends Items 3, 4, 5 and 7 of the Schedule
13D. Unless otherwise indicated, all capitalized terms used but not defined
herein shall have the same meaning as set forth in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The information previously furnished in response to this item is
amended to read as follows:
As of July 27, 1995, TAC has paid to Company an aggregate
consideration of $45,000,000 to acquire 18,800,000 shares of Common Stock,
620,000 shares of Second Series Convertible Preferred Stock convertible into
6,200,000 shares of Common Stock, warrants for 19,444,444 shares of Common Stock
and an option to purchase 11,250,000 shares of Common Stock, all as more
particularly described below. The funds for the acquisition of the foregoing
securities were provided by TAC's cash holdings and short-term investments.
ITEM 4. PURPOSE OF TRANSACTION
The information previously furnished in response to this item is
amended to add the following:
The following summary and description of the transactions contemplated
by the Purchase Agreement, the Purchaser Registration Rights Agreement, the
Shareholders Agreement (as defined below) and certain other documents referred
to therein does not purport to be a complete summary or description thereof and
is subject to and qualified in its entirety by reference to the Purchase
Agreement (including the exhibits attached thereto), the Purchaser Registration
Rights Agreement, the Shareholders Agreement (a copy of which is attached to
this Amendment No. 1 as Exhibit 5) and to the other documents referred to below.
A. As contemplated by Section 1.1 of the Purchase Agreement, on
July 27, 1995:
(1) The Company sold to TAC 5,500,000 shares of Common Stock
(the "PURCHASER NOTE CONVERSION SHARES") upon TAC's conversion of a
$9,900,000 nonrecourse secured convertible promissory note (in the
form attached to the Schedule 13D as Exhibit 2, the "PURCHASER NOTE").
The sale of the Purchaser Note Conversion Shares and the payment of
accrued interest on
Page 5 of 11 Pages
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the Purchaser Note by the Company constituted a full satisfaction
the Company's obligations to TAC under the Purchaser Note. Upon
such satisfaction in full of the Company's obligations under the
Purchaser Note, TAC released all liens against and security interests
in the collateral which had theretofore secured such obligations.
(2) The Company sold to TAC (i) 13,300,000 shares of Common
Stock at a price of $1.80 per share (the "PURCHASER ADDITIONAL
SHARES") and (ii) 620,000 shares of Second Series Convertible
Preferred Stock, $.01 par value per share, of the Company (the
"PURCHASER PREFERRED SHARES") at a price of $18.00 per Purchaser
Preferred Share, which Purchaser Preferred Shares were issued pursuant
to a Certificate of Amendment to the Certificate of Incorporation of
the Company (substantially in the form of Exhibit H to the Purchase
Agreement, the "CERTIFICATE"), and upon the conversion of which the
Company shall issue, sell and deliver to TAC or its assign up to
6,200,000 shares of Common Stock (as such number of shares may be
adjusted pursuant to the Certificate, the "PURCHASER PREFERRED
CONVERSION SHARES"), which conversion may be made from time to time on
or before July 27, 2000 but which in any event shall be made on such
date.
(3) The Company sold to TAC, without separate consideration,
transferable warrants (substantially in the form attached as Exhibit I
to the Purchase Agreement, the "TRANCHE A WARRANTS"), upon the
exercise of which in accordance with terms thereof, the Company shall
sell, issue and deliver to or at the order of the holder thereof up to
19,444,444 shares of Common Stock (as such number of shares may be
adjusted pursuant to the terms of the Tranche A Warrants, the "TRANCHE
A WARRANT SHARES") on or before January 27, 1997 (or, upon the
occurrence of certain events specified in the Tranche A Warrants, July
27, 1998) at an exercise price of $2.10 per Tranche A Warrant Share
(as such price per share may be adjusted pursuant to the terms of the
Tranche A Warrants), payable in cash.
B. As contemplated by Section 1.2 of the Purchase Agreement,
concurrently with the execution and delivery of the Purchase Agreement, the
Company and Joint Energy Development Investments Limited Partnership ("JEDI")
entered into a Restructure Agreement (the "JEDI RESTRUCTURE AGREEMENT"), with
respect to the restructuring of the terms of approximately $62,100,000 principal
amount of indebtedness outstanding under the Loan Agreement dated as of
December 28, 1993 between JEDI and the Company (as amended or modified and as
further amended or modified, the "JEDI LOAN AGREEMENT"), pursuant to which,
among other things, on July 27, 1995:
Page 6 of 11 Pages
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(1) The Company and JEDI executed and delivered a Second
Amendment to Loan Agreement (the "JEDI SECOND AMENDMENT").
(2) The Company issued to JEDI the Tranche B Warrants attached
thereto (substantially in the form attached as Exhibit L to the
Purchase Agreement, the "TRANCHE B WARRANTS"), upon the exercise of
which in accordance with the terms thereof the Company shall sell,
issue and deliver to JEDI up to 11,250,000 shares of Common Stock (as
such number of shares may be adjusted pursuant to the terms of the
Tranche B Warrants, the "TRANCHE B WARRANT SHARES") from time to time
not later than December 31, 2002 (or, upon the occurrence of certain
events specified in the Tranche B Warrants, on a date determined in
accordance with the Tranche B Warrants that shall not be earlier than
July 27, 1998) at a price of $2.00 per Tranche B Warrant Share,
payable either in cash or, in accordance with the terms of the Tranche
B Warrants, by application of the unpaid principal amount of certain
indebtedness referred to in the JEDI Second Amendment as the Tranche B
Loan.
(3) The Company and JEDI entered into a Registration Rights
Agreement (substantially in the form attached as Exhibit B to the
Purchase Agreement, the "JEDI REGISTRATION RIGHTS AGREEMENT").
(4) JEDI granted to TAC, without separate consideration, a
transferable option (the "JEDI/PURCHASER OPTION") to purchase from
JEDI in one or more transactions from time to time not later than
July 27, 1998 the Tranche B Warrant Shares at a price per Tranche B
Warrant Share that is equal to the lesser of (1) $2.00 as increased at
the rate of 18% per annum from July 27, 1995 to the date of the
acquisition and (2) $3.10, in each case as such price per share may be
adjusted pursuant to the terms of the JEDI/Purchaser Option.
C. As contemplated by Section 1.1(a)(2) of the Purchase
Agreement, the Company and TAC entered into a Registration Rights Agreement (in
the form attached to the Schedule 13D as Exhibit 3, the "PURCHASER REGISTRATION
RIGHTS AGREEMENT") on May 19, 1995 pursuant to which, among other things, TAC
will have the right on four occasions to cause the Company on or after April 19,
1995 (the "EFFECTIVE DATE") and to and including the date that is the tenth
anniversary of the Effective Date to register the Purchaser Note Conversion
Shares, the Purchaser Additional Shares, the Purchaser Preferred Conversion
Shares, the Tranche A Warrant Shares and the Tranche B Warrant Shares
(collectively, the "PURCHASER SHARES") under the Securities Act of 1933, as
amended (the "SECURITIES ACT").
Page 7 of 11 Pages
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D. As contemplated by Section 1.1(b)(2) of the Purchase
Agreement, on July 27, 1995, the Company and TAC entered into a Shareholders
Agreement substantially in the form attached to the Purchase Agreement as
Exhibit J (in the form attached to this Amendment No. 1 as Exhibit 5, the
"SHAREHOLDERS AGREEMENT") that, for a period of five years, provides for the
following, among other things:
(1) Subject to certain exceptions, TAC is required to vote all
equity securities of the Company owned by TAC having voting power in
excess of 19.99% of the aggregate voting power of the equity
securities of the Company then outstanding in the same proportion as
all other equity securities of the Company voted with respect to the
matter are voted.
(2) Three persons designated by TAC may serve as directors of
the Company (of which there shall be no more than ten at any time).
(3) Subject to certain exceptions, TAC is prohibited from
acquiring any securities (whether pursuant to the conversion of the
Purchaser Preferred Shares, the exercise of the Tranche A Warrants,
the exercise of the JEDI/Purchaser Option, or otherwise) if as a
result of such acquisition TAC would beneficially own more than 40% of
the shares of Common Stock then issued and outstanding.
Reference is made to the Schedule 13D for a more detailed summary and
description of the Shareholders Agreement.
E. As contemplated by Section 6.1(b)(3) of the Purchase
Agreement, on July 27, 1995, the Company and Mellon Securities Trust Company, as
rights agent, entered into Amendment No. 1 ("AMENDMENT NO. 1") to that certain
Rights Agreement dated as of October 14, 1993 (the "RIGHTS AGREEMENT").
Pursuant to Amendment No. 1, it was agreed that, notwithstanding any other
provision of the Rights Agreement, (1) the execution and delivery of one or more
Transaction Documents or the conclusion of one or more of the Transactions
(including, without limitation, (a) the acquisition by TAC or any of its
Affiliates (as defined in the Purchase Agreement) of the Purchaser Note, the
Purchaser Note Conversion Shares, the Purchaser Additional Shares, the Purchaser
Preferred Shares, the Purchaser Preferred Conversion Shares, the Tranche A
Warrants, the Tranche A Warrant Shares, the JEDI/Purchaser Option, the Tranche B
Warrants, the Tranche B Warrant Shares and such other shares and securities as
may be acquired by TAC or any of its Affiliates pursuant to the terms of the
Purchaser Note, the Purchaser Preferred Shares (or the Certificate), the Tranche
Page 8 of 11 Pages
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A Warrants, the JEDI/Anschutz Option or the Tranche B Warrants and (b) the
"beneficial ownership" (as defined in the Rights Agreement) by any of TAC and
its Affiliates of any of the foregoing) will not cause or permit the Rights (as
defined in the Rights Agreement) to become exercisable, the Rights to be
separated from the stock certificates to which they are attached or any
provision of the Rights Agreement to apply to TAC or any other person by reason
of or in connection with the Transaction Documents or the Transactions,
including, without limitation, the designation of TAC or any other person as an
Acquiring Person (as defined in the Rights Agreement), the occurrence of a
Distribution Date (as defined in the Rights Agreement) and the occurrence of a
Shares Acquisition Date (as defined in the Rights Agreement), and (2) for
purposes of the Rights Agreement, none of TAC and its Affiliates shall at any
time be deemed to be the Beneficial Owner (as defined in the Rights Agreement)
of the Shares of Common Stock and other securities referred to in the preceding
clause (1), PROVIDED, HOWEVER, that Amendment No. 1 shall not effect any
amendment of the Rights Agreement with respect to the acquisition or beneficial
ownership of Voting Securities (as defined in the Rights Agreement) that are not
referred to in the preceding clause (1) that may be acquired or owned
beneficially by any of TAC and its Affiliates from time to time (other than
Voting Securities acquired pursuant to or in connection with, or benefically
owned as a result of, the payment of a dividend on or a split-up, merger,
reclassification, recapitalization, reorganization, combination, subdivision,
conversion, exchange of shares or the like with respect to such Voting
Securities).
F. As contemplated by Section 2.1 of the Shareholders Agreement,
on July 27, 1995:
(1) The Board of Directors of the Company amended its bylaws
to provide for, among other things, the reduction of the number of
directors of the Company from twelve to ten, and of the minimum number
of directors per class of directors from three to two, and the
formation of a Nomination Committee.
(2) Contemporaneously with such amendment, the Board of
directors accepted the resignations of Harold D. Hammar, John C. Dorn,
Jeffrey W. Miller and Austin M. Buetner from the Board of Directors.
(3) Upon the acceptance of such resignations, the Board of
Directors, in acccordance with its authority under the bylaws (as
amended), elected as members of the Board of Directors each of
Anschutz, Craig D. Slater and Drake S. Tempest, who were designated by
TAC for such purpose. Additionally,
Page 9 of 11 Pages
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Anschutz was appointed as a member of the newly-formed Nominations
Committee, Craig D. Slater was appointed as a member of each of the
Executive Committee and the Audit Committee, and Drake S. Tempest was
appointed as a member of the Compensation Committee.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The information previously furnished in response to this item is
amended to read as follows:
TAC is the direct beneficial owner, and AC and Anschutz are
indirect beneficial owners, of (i) 18,800,000 shares of Common Stock referred to
in Item 4 as the Purchaser Note Conversion Shares and the Purchaser Additional
Shares, (ii) 620,000 shares of Second Series Convertible Preferred Stock
referred to in Item 4 as the Purchaser Preferred Shares (which are convertible
into the 6,200,000 shares of Common Stock referred to in Item 4 as the Purchaser
Preferred Conversion Shares), (iii) Tranche A Warrants to acquire 19,444,444
shares of Common Stock that are referred to in Item 4 as the Tranche A Warrant
Shares and (iv) an option referred to in Item 4 as the JEDI/Purchaser Option to
acquire from JEDI 11,250,000 shares of Common Stock that are referred to in Item
4 as Tranche B Warrant Shares (which Tranche B Warrant Shares may be acquired by
JEDI from the Company upon the exercise of Tranche B Warrants).
Without giving effect to the conversion of the Purchaser Preferred
Shares or the exercise of any of the Tranche A Warrants, Tranche B Warrants or
the JEDI/Purchaser Option, TAC has acquired the direct beneficial ownership, and
AC and Anschutz the indirect beneficial ownership, of 18,800,000 shares of
Common Stock, or approximately 39.7% of the outstanding shares of Common Stock.
After giving effect to the conversion of the Purchaser Preferred
Shares and the exercise of all Tranche A Warrants, Tranche B Warrants and the
JEDI/Purchaser Option (assuming for such purpose the absence of the restrictions
imposed on the conversion or exercise thereof by the Shareholders Agreement),
TAC may be deemed to have acquired the beneficial ownership, and AC and Anschutz
the indirect beneficial ownership, of 55,694,444 shares of Common Stock, or
approximately 66.1% of the shares of Common Stock that would be outstanding
after giving effect to the issuance of all such shares.
TAC and its affiliates, including, without limitation, AC and
Anschutz, are subject to certain restrictions on the voting, acquisition and
disposition of shares of Common Stock and other equity securities of the
Page 10 of 11 Pages
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Company. Reference is made to Item 4 (as supplemented by this Amendment No. 1)
for a summary of such restrictions, as well as to the Shareholders Agreement
attached to this Amendment No. 1 as Exhibit 5, pursuant to which such
restrictions have been imposed.
TAC, AC and Anschutz may be deemed to share the power both to vote
and to direct the disposition of the shares of Common Stock and other equity
securities of the Company referred to above if and when beneficial ownership
thereof is acquired by TAC. Reference is made to Item 4 (as supplemented by
this Amendment No.1) for a summary of the transactions pursuant to which TAC may
acquire such beneficial ownership.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The information previously furnished in response to this item is
supplemented by adding thereto a reference to the following new Exhibit:
Exhibit 5 Shareholders Agreement dated as of July 27, 1995 between
Forest Oil Corporation and The Anschutz Corporation
Page 11 of 11 Pages
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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.
July 27, 1995
- -------------------------
Date
THE ANSCHUTZ CORPORATION
By /s/ Philip F. Anschutz
-------------------------------
Philip F. Anschutz, President
S-1
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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.
July 27, 1995
- --------------------
Date
ANSCHUTZ COMPANY
By /s/ Philip F. Anschutz
------------------------------
Philip F. Anschutz, President
S-2
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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.
July 27, 1995
- ----------------------------
Date
By /s/ Philip F. Anschutz
------------------------
Philip F. Anschutz
S-3
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EXHIBIT INDEX
Shareholders Agreement dated as of July 27, 1995 between . . . . . Exhibit 5
Forest Oil Corporation and The Anschutz Corporation
Ex. - 1
<PAGE>
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT dated as of July 27, 1995 between FOREST OIL
CORPORATION, a New York corporation (the "COMPANY"), and THE ANSCHUTZ
CORPORATION, a Kansas corporation ("PURCHASER").
Terms not otherwise defined herein have the meanings stated in the
Purchase Agreement (as defined below).
RECITALS
A. The parties have entered into the Purchase Agreement (the
"PURCHASE AGREEMENT") dated as of May 17, 1995.
B. Pursuant to the Purchase Agreement, (i) on the First Closing Date
Purchaser purchased the Purchaser Note which on the Second Closing Date was by
its terms converted into the Purchaser Note Conversion Shares and (ii) on the
Second Closing Date Purchaser purchased the Purchaser Additional Shares, the
Purchaser Preferred Shares and the Tranche A Warrants and may, upon the
conversion of the Purchaser Preferred Shares and exercise of the Tranche A
Warrants, thereafter acquire the Purchaser Preferred Conversion Shares and
Tranche A Warrant Shares, respectively.
C. On the Second Closing Date, Joint Energy Developments Limited
Partnership, a Delaware limited partnership ("JEDI"), granted to Purchaser the
JEDI/Purchaser Option providing for an option to purchase the Tranche B Warrants
Shares. The Purchaser Note Conversion Shares, the Purchaser Additional Shares,
the Purchaser Preferred Conversion Shares, the Tranche A Warrant Shares and the
Tranche B Warrant Shares acquired by Purchaser pursuant to the JEDI/Purchaser
Option are collectively referred to as the "PURCHASER SHARES".
D. Pursuant to the Purchase Agreement, on the First Closing Date the
Company entered into a Registration Rights Agreements with Purchaser pursuant to
which the Company granted to Purchaser and certain other persons certain rights
with respect to the registration under the Securities Act of the disposition of
the Purchaser Shares.
<PAGE>
AGREEMENT
The parties agree as follows:
ARTICLE I
DEFINITIONS
Terms not otherwise defined herein have the respective meanings
assigned in the Purchase Agreement. The following terms have the following
meanings:
"BENEFICIAL OWNERSHIP" or similar terms, except as expressly provided
to the contrary in this Agreement in the definitions of "Section 16(b)
Liability" and "Section 16(b) Matter", has the meaning assigned to the term
"beneficial ownership" in Section 13(d) of the Exchange Act or the related rules
and regulations.
"BUSINESS COMBINATION TRANSACTION" means a merger, consolidation or
similar transaction and each transaction that constitutes a "Change of Control"
within the meaning of the Indenture dated as of September 8, 1993 between the
Company and Shawmut Bank Connecticut, N.A. (giving effect to other terms and
provisions of such indenture that are directly or indirectly incorporated or
referenced by the definition therein of "Change of Control").
"EXCESS PURCHASER SECURITIES" means, at any time of determination and
with respect to the matter subject to the vote or consent for which the Excess
Purchaser Securities are then being determined, the Equity Securities of the
Company owned by any of Purchaser and its Affiliates and the Groups in which any
of them may be members that may then be voted or with respect to which consent
may then be given, in each case with respect to such matter (collectively, the
"EFFECTIVE EQUITY SECURITIES"); PROVIDED, however, that "EXCESS PURCHASER
SECURITIES", at any such time of determination and with respect to the matter
subject to such vote or consent, shall not include the Effective Equity
Securities that in the aggregate, have a voting power with respect to such
matter not greater than 19.99% of the aggregate voting power of all Equity
Securities of the Company then issued and outstanding.
"GROUP" has the meaning given such term in Section 13(d)(3) of the
Exchange Act and the related rules and regulations.
"RELATED TRANSACTION" means, with respect to any acquisition or
disposition, or deemed acquisition or disposition, of any securities, a
transaction that (1) has been disclosed in a document filed with the Securities
and Exchange Commission with respect to the Company (that is then available for
inspection at the offices of the Securities and Exchange Commission) or has been
otherwise publicly announced and (2) by its terms is effective upon, or
immediately before or after giving effect to, the occurrence of such acquisition
or disposition or deemed acquisition or disposition.
2
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"SECTION 16(b) LIABILITY" means liability under Section 16(b) of the
Exchange Act with respect to or as a consequence, directly or indirectly, of
Purchaser's or Purchaser's Affiliate's acquisition (or deemed acquisition) or
disposition (or deemed disposition) of "beneficial ownership" of, or a
"pecuniary interest" or "indirect pecuniary interest" in, any of the Purchaser
Shares or any other "equity security" of the Company or "derivative security"
relating to the Company, whether or not issued by the Company (such terms having
the respective meanings assigned to them by Section 16 of the Exchange Act and
the related rules and regulations), that shall have been issued or otherwise
created, acquired (or deemed to have been acquired) or disposed of (or deemed to
have been disposed of) by or pursuant to the Transaction Documents; PROVIDED,
HOWEVER, that Section 16(b) Liability shall not include any such liability under
Section 16(b) of the Exchange Act with respect to or as a consequence of the
acquisition of "beneficial ownership" of, or a "pecuniary interest" or "indirect
pecuniary interest" in any "equity security" of the Company or "derivative
security" relating to the Company that shall not have been issued or otherwise
created or acquired (or deemed to have been acquired) pursuant to or in
accordance with the Transaction Documents.
"SECTION 16(b) MATTER" means each matter or series of matters
(including, without limitation, a proposed transaction or series of transactions
involving any stock or other non-cash dividend, split-up, reverse split-up,
reclassification, recapitalization, reorganization, combination, subdivision,
conversion, exchange of shares or Business Combination Transaction) which,
directly or indirectly, as a result of the taking of action with respect thereto
by the Company, its Board of Directors or shareholders or any Governmental Body
having jurisdiction thereover, or the conclusion of any such matter will or may,
directly or indirectly, whether taken alone or together with other facts or
events, result in Section 16(b) Liability; PROVIDED, HOWEVER, that a Section
16(b) Matter shall not include any of the foregoing matters that will or may,
directly or indirectly, result in Section 16(b) Liability with respect to or as
a consequence of the transfer by Purchaser or any of its affiliates of any
Purchaser Shares in violation of the provisions of Section 3.2 or in transfers
that would violate the provisions of Section 3.2 but for clauses (a), (b), (c),
(d), (e), (h) and (i) thereof (collectively, "EXCLUDED TRANSFERS").
"TERMINATION DATE" has the meaning stated in Section 4.1.
ARTICLE II
COMPANY COVENANTS
SECTION 2.1 BOARD OF DIRECTORS.
(a) On the Second Closing Date and from time to time thereafter
until the Termination Date, except as otherwise approved by the Board of
Directors, including a majority of the Independent Directors, or by the vote of
the holders of two-thirds of the shares
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of Common Stock then issued and outstanding (in which the shares of Common Stock
owned by Purchaser and its Affiliates are voted in accordance with the
restrictions contained in Section 3.1, if applicable), the Company shall take
all actions necessary to cause, (1) the number of directors of the Company to be
fixed at ten, (2) the election as directors of the Company of three persons
selected by Purchaser (the "PURCHASER DESIGNEES"), two persons who are officers
of the Company and five persons none of whom is then or has been at any time
during the preceding two years an officer or employee of the Company or a
director, officer or employee of a beneficial owner of 5% or more of the shares
of Common Stock then issued and outstanding or any affiliate of such beneficial
owner (each an "INDEPENDENT DIRECTOR"), (3) the appointment of a Purchaser
Designee who is a director chosen by Purchaser as a member of the Executive
Committee, the Compensation Committee and the Audit Committee (or committees
having similar functions) of the Board of Directors (the "COMMITTEES"), (4) the
formation of a Nominating Committee to be composed of three directors, of whom
one shall be a Purchaser Designee selected by Purchaser, one shall be an officer
of the Company and one shall be an Independent Director, (5) nominees to the
Board of Directors other than the Purchaser Designees to be selected by a vote
of at least two members of the Nominating Committee, of whom one shall be an
Independent Director, (6) if any such Purchaser Designee shall cease to be a
director for any reason, the filling of the vacancy resulting thereby with a
Purchaser Designee and (7) the calling of meetings of the Board of Directors and
committees thereof upon the written request of a Purchaser Designee who is a
director.
(b) The obligations of the Company under this Section 2.1 shall
be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated
thereunder. The Company shall take all actions required pursuant to Section
14(f) and Rule 14f-l in order to fulfill its obligations under this Section 2.1,
including, without limitation, the inclusion in the Proxy Statement of such
information with respect to the Company and its officers and directors as is
required under Section 14(f) and Rule 14f-l. Purchaser will supply to the
Company any information with respect to Purchaser and its initial designees
required by Section 14(f) and Rule 14f-l.
(c) If at any time (1) one or more Purchaser Designees shall not
be elected to the Board of Directors by the shareholders of the Company
(notwithstanding Purchaser and its Affiliates having voted all shares of Common
Stock owned by them in favor of such election) and each of such Purchaser
Designees shall not otherwise have been elected to the Board of Directors before
a date that is 10 days after the date of such vote by the shareholders of the
Company and, in any event, before any other material action or matter is
considered and resolved by the Board of Directors or (2) one or more directors
who are Purchaser Designees shall not be appointed to any of the Committees and
the directors who are Purchaser Designees shall have voted in favor of each such
appointment, in each case as such election or appointment is required under this
Section 2.1, the provisions set forth in Article III will thereafter be of no
further force or effect.
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SECTION 2.2 EXCHANGE ACT SECTION 16(b).
(a) Without the prior written consent of Purchaser, the Company
shall take no action with respect to a Section 16(b) Matter that will or may,
directly or indirectly, whether taken alone or together with other facts or
events, result in Purchaser or an Affiliate of Purchaser having Section 16(b)
Liability, PROVIDED that the Company may take any such action (1) with respect
to a Section 16(b) Matter if there shall have been entered a final judgment to
the effect that Purchaser and its Affiliates do not and will not, directly or
indirectly, have any Section 16(b) Liability, which judgment shall not be
subject to appeal and is RES JUDICATA as to all matters that may give rise to
Section 16(b) Liability in connection therewith, or (2) that may, directly or
indirectly, result in any such liability with respect to or as a consequence of
any Excluded Transfer.
(b) In all notices, registrations, applications, statements,
pleadings, memoranda, briefs and other documents submitted to or filed with any
Governmental Body (including, without limitation, in any Action referred to in
Section 2.2(c)), none of the Company, Purchaser and their respective Affiliates
shall assert any position or claim with respect to the acquisition (or deemed
acquisition) or disposition (or deemed disposition) by Purchaser of "beneficial
ownership" of, or a "pecuniary interest" or "indirect pecuniary interest" in,
any of the Purchaser Shares that is inconsistent with the position or claim that
Purchaser acquired (or shall have been deemed to acquire) "beneficial ownership"
of, or a "pecuniary interest" or "indirect pecuniary interest" in, all of the
Purchaser Shares on or before the date of this Agreement, except that Purchaser
may assert any such inconsistent position or claim if Purchaser, based on advice
of counsel, determines that there is a reasonable basis to conclude that as a
result of the failure to assert such inconsistent position or claim, Purchaser,
any person who controls Purchaser within the meaning of any applicable
Regulation or any of their respective shareholders, directors, officers,
employees, agents and Affiliates could be in violation of any applicable
Regulation or could become subject to any sanction, fine, award or other
penalty, whether civil or criminal.
(c) The Company may seek to determine by an Action brought against
Purchaser in the United States District Court in the Southern District of New
York, or other jurisdiction approved by the Company and Purchaser, the
respective rights and obligations of the parties under Sections 2.2(a) and
3.1(a).
SECTION 2.3 RESTRICTIONS ON PURCHASER. Without the prior written
consent of Purchaser, the Company shall not take or recommend to its
shareholders any action which would impose limitations on the legal rights to be
enjoyed by Purchaser or Affiliates of Purchaser as a shareholder of the Company,
other than those imposed by the express terms of this Agreement and the other
Transaction Documents, including, without limitation, any action which would
impose or increase restrictions on Purchaser or Affiliates of Purchaser (a)
based upon the size of its security holdings, the business in which it is
engaged or other considerations applicable to it and not to security holders
generally, (b) by means of the issuance of or proposal to issue
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any other class of securities having voting power disproportionately greater
than the equity investment in the Company represented by such securities or by
charter or by-law amendment or (c) by reducing by any means (including, without
limitation, by split-up, reverse split-up, reclassification, recapitalization,
reorganization, combination, redemption, repurchase, or cancellation of
securities or rights or by a Business Combination Transaction) the number of
shares of Common Stock that are then issued and outstanding or are then subject
to issuance upon the conversion of or exercise or exchange for any Equity
Securities (including securities exchangeable or convertible into Equity
Securities) of the Company then outstanding, excepting only the reduction in
such number of shares of Common Stock then issued and outstanding or subject to
issuance resulting from the conversion of or exercise or exchange for Equity
Securities of the Company issued and outstanding on the Second Closing Date
(including, without limitation, the Purchaser Note, the Tranche A Warrants and
the Tranche B Warrants) and adjustments in the number of shares of Common Stock
subject to issuance under Employee Options that are issued and outstanding on
the Second Closing Date;
SECTION 2.4 ACCESS TO INFORMATION.
(a) The Company shall promptly furnish to Purchaser all
information that is required by GAAP to enable Purchaser to account for its
investment in the Company. To the extent reasonably requested by Purchaser, the
Company shall, and shall cause its employees, independent public accountants and
other representatives to, provide information regarding the Company to, and
otherwise cooperate with, Purchaser and the representatives of Purchaser so as
to enable Purchaser to prepare financial statements in accordance with GAAP.
(b) Upon the request of Purchaser from time to time, the Company
shall promptly disclose to Purchaser the number of shares of Common Stock issued
and outstanding on a date not more than 5 days prior to the date of such request
and the number of shares of Common Stock subject to issuance upon the conversion
of or exercise or exchange for the Equity Securities of the Company outstanding
on such date.
SECTION 2.5 RIGHTS AGREEMENT. If the Company shall at any time
after the First Closing Date amend, modify or waive the Rights Agreement with
respect to any person or any Voting Securities (as defined in the Rights
Agreement) or other securities "beneficially owned" (as defined in the Rights
Agreement) by such person or otherwise, in any manner, directly or indirectly,
exempt any person or any Voting Securities or any other securities beneficially
owned by such person from the provisions, limitations or effects of the Rights
Agreement, then, concurrently therewith, the Company shall, with respect to the
Purchaser and its Affiliates and the Voting Securities and other securities
beneficially owned by any of them, take the same action with respect to the
Rights Agreement so that as a result thereof each of the Purchaser and its
Affiliates and the Voting Securities and other securities beneficially owned by
any of them are subject to the Rights Agreement in the same manner and to the
same extent as such other person and the Voting Securities or other securities
beneficially owned by such other person.
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ARTICLE III
PURCHASER RESTRICTIONS
SECTION 3.1 PURCHASER VOTING RESTRICTIONS.
(a) In connection with each vote or written consent of the
holders of Common Stock, Purchaser and its Affiliates shall vote, or consent
with respect to, and cause each of its Affiliates and each Group of which it is
a member, to vote or consent with respect to, all Excess Purchaser Securities in
respect of the matters subject to such vote or consent in the same proportion
that all other Equity Securities of the Company (other than Equity Securities of
the Company owned by Purchaser, any of its Affiliates or any such Group) are
voted or with respect to which such consent is given by holders of such Equity
Securities with respect to such matter; PROVIDED, HOWEVER, that notwithstanding
the foregoing, each of Purchaser, its Affiliates and such Groups at all times
may vote, or consent with respect to, Excess Purchaser Securities (1) for the
election of each of the permitted number of Purchaser Designees, (2) as
Purchaser, such Affiliate or such Group shall determine with respect to each
Section 16(b) Matter with respect to which (A) any of Purchaser and its
Affiliates will have or may, directly or indirectly, have Section 16(b)
Liability and (B) there shall not have been entered, as of the date such vote or
consent shall be required to be given, a final judgment to the effect that
Purchaser and its Affiliates do not and will not, directly or indirectly, have
any Section 16(b) Liability, which judgment shall not be subject to appeal and
is res judicata as to all matters that may give rise to Section 16(b) Liability
in connection therewith, and (3) as otherwise approved by the Board of Directors
of the Company, including a majority of Independent Directors, with respect to
the matter subject to such vote or consent.
(b) Notwithstanding anything contained in this Agreement,
Purchaser and its Affiliates and the respective Groups in which any of them may
be members shall not be restricted in any manner whatsoever from voting, or
consenting with respect to, Equity Securities of the Company owned by any of
them that are not Excess Purchaser Securities with respect to the matter subject
to such vote or consent.
SECTION 3.2 PURCHASER TRANSFER RESTRICTIONS. Purchaser shall not,
and shall not cause or permit its Affiliates to, transfer the beneficial
ownership of the Purchaser Shares (including, without limitation, the Purchaser
Preferred Shares, the JEDI/Purchaser Option and the Warrants) except in one or
more of the following transactions:
(a) each transfer pursuant to a public offering of Common Stock
pursuant to a registration statement effective under the Securities Act; and
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(b) each transfer to any person or Group that represents in
writing to Purchaser that, after giving effect to such transfer and to each
Related Transaction, it will beneficially own less than 9.9% of the sum of the
shares of Common Stock that are then issued and outstanding plus the sum of the
shares of Common Stock that are then subject to acquisition upon the conversion,
exercise or exchange of Equity Securities of the Company so transferred (whether
or not the conversion, exercise or exchange thereof is subject to any condition
or restriction); and
(c) each transfer to any person or Group that (1) represents in
writing to Purchaser that, after giving effect to such transfer and to each
Related Transaction, it will beneficially own more than 9.9% and less than 20%
of the sum of the shares of Common Stock that are then issued and outstanding
plus the sum of the shares of Common Stock that are then subject to acquisition
upon the conversion, exercise or exchange of Equity Securities of the Company so
transferred (whether or not the conversion, exercise or exchange thereof is
subject to any condition or restriction) and (2) assumes by written instrument
satisfactory to each of the Company and Purchaser the obligations and
restrictions contained in this Section 3.2 to which such Purchaser Shares were
subject immediately prior to such transfer; and
(d) each transfer approved by the Board of Directors of the
Company, including a majority of Independent Directors, which approval shall not
be unreasonably withheld, to any person or Group that represents in writing to
Purchaser that, after giving effect to such transfer to each Related
Transaction, it will beneficially own more than 9.9% and less than 20% of the
sum of the shares of Common Stock that are then issued and outstanding plus the
sum of the shares of Common Stock that are then subject to acquisition upon the
conversion, exercise or exchange of Equity Securities of the Company so
transferred (whether or not the conversion, exercise or exchange thereof is
subject to any condition or restriction); and
(e) each transfer approved by the Board of Directors of the
Company, including a majority of Independent Directors; and
(f) each transfer in a Business Combination Transaction approved
by the Board of Directors of the Company, including a majority of Independent
Directors, or by two-thirds of the shares of Common Stock voted with respect to
the transaction (in which the Purchaser Shares are voted in accordance with the
restrictions contained in Section 2.1, if applicable); and
(g) each transfer pursuant to a tender or exchange offer for
outstanding Common Stock by any person other than Purchaser, any of its
Affiliates or any Group including Purchaser or any of its Affiliates (1) which
the Board of Directors of the Company, including a majority of the Independent
Directors, does not oppose, or (2) which the Board of Directors of the Company
or a majority of Independent Directors opposes if after completion of such
tender or exchange offer securities not tendered or exchanged may be treated
less favorably than securities tendered, provided that no tender, indication or
arrangement to tender Common Stock
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may be made in the case of the preceding clause (2) until forty-eight hours
prior to the expiration of any time after which securities tendered may be
treated less favorably than securities tendered prior thereto; and
(h) each bona fide pledge of or the granting of a security
interest or any other Lien in the Purchaser Shares to secure a bona fide loan,
guarantee or other financial support, the foreclosure of such pledge or security
interest or any other Lien that may be placed involuntarily upon any Purchaser
Shares, or the subsequent sale or other disposition of such Purchaser Shares by
such lender or its agent, provided that such lender is not a member of a Group
with respect to Common Stock which Group includes Purchaser or Affiliates of
Purchaser; and
(i) each transfer of Purchaser Shares to any Affiliate of
Purchaser, or a bona fide pledge of or the granting of a security interest or
any other Lien in such Purchaser Shares to an Affiliate of Purchaser, provided
in each case that such Affiliate shall expressly assume by written instrument
satisfactory to the Company and Purchaser all of the obligations and
restrictions contained in this Shareholder Agreement to which such Purchaser
Shares were subject immediately before such transfer; and
(j) a transfer upon the liquidation or dissolution of the
Company or a transfer which is effected by operation of law.
SECTION 3.3 PURCHASER PURCHASE RESTRICTIONS.
(a) Purchaser shall not, and shall not cause or permit its
Affiliates or any Group including Purchaser or any of its Affiliates to, acquire
shares of Common Stock, which when combined with shares of Common Stock then
owned by Purchaser and its Affiliates, after giving effect to the acquisition
and each Related Transaction, would result in Purchaser beneficially owning 40%
or more of the shares of Common Stock then issued and outstanding, PROVIDED that
the Purchaser Preferred Conversion Shares, the Tranche A Warrant Shares and the
Tranche B Warrant Shares that shall not then have been acquired by the Purchaser
and its Affiliates shall not be included in any such determination of beneficial
ownership, except that such restriction on purchase shall not be applicable to
each of the following acquisitions:
(1) each acquisition following a Business Combination Transaction
that (A) shall have been approved by the Board of Directors of the Company,
including a majority of Independent Directors, or by two-thirds of the
shares of Common Stock voted with respect to the transaction (in which the
Purchaser Shares are voted in accordance with the restrictions contained in
Section 3.1, if applicable) and (B) would, if completed on the terms so
approved, result in the beneficial ownership by any person or Group (other
than and not including Purchaser or an Affiliate of, or any person acting
in concert with Purchaser) of 20% or more of the shares of Common Stock
then issued and outstanding or, if all or any part of the shares of Common
Stock shall be changed
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into or exchanged for shares of any class of capital stock of any other
person (which class has the right to vote generally for the election of
directors), 20% or more of the shares of such class of capital stock; and
(2) each acquisition following the commencement of a tender or
exchange offer made by any person or Group (other than and not including
Purchaser or an Affiliate of, or any person acting in concert with,
Purchaser) to acquire beneficial ownership of 40% or more of the shares of
Common Stock then issued and outstanding; and
(3) each acquisition after any person or Group (other than and not
including an Affiliate of Purchaser) shall own beneficially shares of
Common Stock which exceed the sum of the number of shares of Common Stock
that are then owned by Purchaser and its Affiliates plus the number of
shares that are then subject to acquisition upon the conversion, exercise
or exchange by Purchaser and its Affiliates of Equity Securities of the
Company or other rights then owned by Purchaser and its Affiliates
(including, without limitation (but without duplication), the Purchaser
Note, the Purchaser Preferred Shares, the JEDI/Purchaser Option, the
Tranche A Warrants and the Tranche B Warrants), whether or not the
conversion, exercise or exchange thereof is then subject to any condition
or restriction; and
(4) each acquisition approved by the Board of Directors of the
Company, including a majority of Independent Directors.
(b) Purchaser and its Affiliates shall have no obligation under
this Agreement or otherwise to transfer shares of Common Stock, which, when such
shares were acquired, after giving effect to such transaction and any Related
Transaction, did not, when combined with other shares of Common Stock then owned
by Purchaser and its Affiliates and any Group including Purchaser or any of its
Affiliates, constitute 40% or more of the shares of Common Stock then issued and
outstanding. Without limiting the generality of the foregoing, Purchaser and
its Affiliates shall not be required to transfer any shares of Common Stock if
the aggregate percentage ownership of Purchaser and its Affiliates is increased
as a result of any action taken by the Company or its Affiliates including,
without limitation, by reverse split-up, reclassification, recapitalization,
reorganization, combination, redemption, repurchase or cancellation of shares or
Business Combination Transaction.
SECTION 3.4 OTHER PURCHASER RESTRICTIONS. Purchaser shall not, and
shall not cause or permit its Affiliates to, enter into any transaction
(including, without limitation, the purchase, sale or exchange of property or
the rendering of any service) with any of the Company and its Subsidiaries that
shall not have been approved by the Board of Directors of the Company, including
a majority of Independent Directors.
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ARTICLE IV
TERMINATION
SECTION 4.1 TERMINATION. This Agreement shall terminate on the
date (the "TERMINATION DATE") that is the earlier of (a) the fifth anniversary
of the Second Closing Date and (b) the first day on which (1) the sum of the
number of shares of Common Stock beneficially owned by Purchaser and its
Affiliates that are then issued and outstanding plus the number of shares of
Common Stock that are then subject to acquisition by Purchaser and its
Affiliates upon the conversion, exercise or exchange of Equity Securities of the
Company then owned by Purchaser and its Affiliates (including, without
limitation (but without duplication), the Purchaser Preferred Shares, the
JEDI/Purchaser Option, the Tranche A Warrants and the Tranche B Warrants),
whether or not the conversion, exercise or exchange thereof is then subject to
any condition or restriction is less than (2) an amount equal to 20% of the
total number of shares of Common Stock then issued and outstanding and then
subject to issuance upon the conversion of or exercise or exchange for all
Equity Securities (including securities convertible, exercisable or exchangeable
into Common Stock, whether or not the conversion, exercise or exchange thereof
is then subject to any condition or restriction) of the Company or rights then
outstanding.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 LEGENDS. Certificates representing Purchaser Shares
shall bear the legends as required by Section 3.4 of the Purchase Agreement;
PROVIDED, HOWEVER, that after the transfer of Purchaser Shares in accordance
with Section 3.2 and the Termination Date, the legend referred to in Section
3.4(a)(2) of the Purchase Agreement shall be removed with respect to such
Purchaser Shares and all Purchaser Shares, respectively.
SECTION 5.2 NOTICES. All notices, requests and other
communications to any party or under this Agreement shall be in writing.
Communications may be made by telecopy or similar writing. Each communication
shall be given to such party at its address stated on the signature pages of
this Agreement or at any other address as such party may from time to time
specify in writing to all other parties. Each communication shall be effective
(a) if given by telecopy, when the telecopy is transmitted to the proper address
and the receipt of the transmission is confirmed, (b) if given by mail, 72 hours
after the communication is deposited in the mails properly addressed with first
class postage prepaid or (c) if given by any other means, when delivered to the
proper address and a written acknowledgement of delivery is received.
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SECTION 5.3 NO WAIVERS; REMEDIES; SPECIFIC PERFORMANCE.
(a) No failure or delay by any party in exercising any right,
power or privilege under this Agreement shall operate as a waiver of such right,
power or privilege. A single or partial exercise of any right, power or
privilege shall not preclude any other or further exercise of such right, power
or privilege or the exercise of any other right, power or privilege. The rights
and remedies provided in this Agreement shall be cumulative and not exclusive of
any rights or remedies available at law or in equity.
(b) In view of the uniqueness of the agreements contained in
this Agreement and the transactions contemplated hereby and the fact that each
party would not have an adequate remedy at law for money damages in the event
that any obligations under this Agreement is not performed in accordance with
its terms, each party therefore agrees that the other parties to this Agreement
shall be entitled to specific enforcement of the terms of this Agreement in
addition to any other remedy to which any of them may be entitled, at law or in
equity.
SECTION 5.4 AMENDMENTS, ETC. No amendment, modification,
termination, or waiver of any provision of this Agreement, and no consent to any
departure by a party from any provision of this Agreement, shall be effective
unless it shall be in writing and signed and delivered by the other parties to
this Agreement, and then it shall be effective only in the specific instance and
for the specific purpose for which it is given.
SECTION 5.5 SUCCESSORS AND ASSIGNS.
(a) Except as expressly contemplated by this Agreement, no party
may assign its rights or delegate its obligations under this Agreement without
the prior written consent of the other parties; PROVIDED, that Purchaser may
assign its rights and delegate its responsibilities under this Agreement
pursuant to Sections 3.2(c) or 3.2(h), as the case may be, without the consent
of the Company. Any assignment or delegation in contravention of this
Section 5.5 shall be void AB INITIO and shall not relieve the delegating party
of any of its obligations under this Agreement.
(b) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
permitted successors and assigns.
(c) Notwithstanding anything herein to the contrary, each
transferee of Purchaser Shares transferred in one or more of the transactions
specified in clauses (a) through (j), inclusive, of Section 3.2 shall acquire
such Purchaser Shares free and clear of any restrictions or obligations
contained in this Agreement.
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SECTION 5.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York. All
rights and obligations of the parties shall be in addition to and not in
limitation of those provided by applicable law.
SECTION 5.7 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if all signatures were on the same instrument.
SECTION 5.8 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of the provision in any other
jurisdiction.
SECTION 5.9 HEADINGS AND REFERENCES. Article and section headings
in this Agreement are included for the convenience of reference only and do not
constitute a part of this Agreement for any other purpose. References to
parties and articles and sections in this Agreement are references to the
parties to or the articles and sections of this Agreement, as the case may be,
unless the context shall require otherwise.
SECTION 5.10 ENTIRE AGREEMENT. Except as otherwise specifically
provided in the following sentence, this Agreement embodies the entire agreement
and understanding of the parties and supersedes all prior agreements or
understandings with respect to the subject matters of this Agreement. Purchaser
shall remain subject to paragraphs (1) through (3), inclusive, of the letter
agreement dated March 6, 1995 between the Company and Purchaser in accordance
with the terms thereof and Purchaser and the Company shall remain subject to the
other Transaction Documents.
SECTION 5.11 SURVIVAL. Except as otherwise specifically provided in
this Agreement, each representation, warranty or covenant of each party
contained in this Agreement shall remain in full force and effect,
notwithstanding any investigation or notice to the contrary or any waiver by any
other party of a related condition precedent to the performance by such other
party of an obligation under this Agreement.
SECTION 5.12 SUBMISSION TO JURISDICTION. Each party (1) agrees that
any Action with respect to this Agreement or transactions contemplated by this
Agreement shall be brought exclusively in the courts of the State of New York or
of the United States of America for the Southern District of New York,
(2) accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of those courts, (3) irrevocably waives any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of FORUM NON CONVENIENS, which it may now or hereafter
have to the bringing of any action in those jurisdictions; PROVIDED, HOWEVER,
that each party may assert in an Action in any other
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jurisdiction or venue each mandatory defense, third-party claim or similar claim
that, if not so asserted in such Action, may not be asserted in an original
Action in the courts referred to in clause (1) above.
SECTION 5.13 WAIVER OF JURY TRIAL. Each party waives any right to a
trial by jury in any action to enforce or defend any right under this Agreement
or any amendment, instrument, document or agreement delivered, or which in the
future may be delivered, in connection with this Agreement and agrees that any
action shall be tried before a court and not before a jury.
SECTION 5.14 AFFILIATE. Nothing contained in this Agreement shall
cause Purchaser or any other party to be or be deemed an "affiliate" of any of
the Company and its Subsidiaries within the meaning of Rule 13e-3 under the
Exchange Act.
-------------------------------
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Shareholders Agreement as of the date first written above in New York, New
York.
FOREST OIL CORPORATION
By: /s/ Robert S. Boswell
-------------------------
Robert S. Boswell
President
Address: 1500 Colorado National
Building
950 - 17th Street
Denver, Colorado 80202
Telecopy: (303) 592-2602
THE ANSCHUTZ CORPORATION
By: /s/ Douglas L. Polson
-------------------------
Douglas L. Polson
Vice President and Chief Financial Officer
Address: 2400 Anaconda Tower
555 - 17th Street
Denver, Colorado 80202
Telecopy: (303) 298-8881
S-1
