<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
DEKALB ENERGY COMPANY
- --------------------------------------------------------------------------------
(Name of Issuer)
Class A Stock, no par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
244874202
- --------------------------------------------------------------------------------
(CUSIP Number)
Zurab S. Kobiashvili
Vice President, General Counsel and Secretary
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
(713) 296-6000
(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 the statement /X/. (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.
*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).
(Continued on following page(s))
Schedule 13D. Page 1 of 7 Pages
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 244874202 PAGE 2 OF 7 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apache Corporation, ID# 41-0747868
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
1,202,403
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
-0-
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,202,403
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE> 3
ITEM 1. SECURITY AND ISSUER
This Schedule 13D relates to the Class A Stock, no par value (the
"Class A Stock"), of DEKALB Energy Company, a Delaware corporation ("DEKALB"),
which has its principal executive offices at 700 9th Avenue, S.W., 10th Floor,
Calgary, Alberta, Canada T2P 3V4.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by Apache Corporation, a Delaware
corporation ("Apache"), an independent energy company that explores for,
develops, produces, gathers, processes and markets natural gas and crude oil.
The address of its principal business and of its principal office is 2000 Post
Oak Boulevard, Suite 100, Houston, Texas 77056-4400. Attached to this Schedule
13D as Schedule I is a list of the directors and executive officers of Apache
and the business address, citizenship and principal occupation or employment of
each director and executive officer (including the name, principal business and
address of any corporation or organization at which their employment is
conducted). During the last five years, neither Apache nor any of the persons
listed on Schedule I has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which Apache or any such person 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 violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On December 21, 1994, Apache entered into an Agreement and Plan of
Merger (the "Merger Agreement") among Apache, XPX Acquisitions, Inc. ("XPX") a
wholly owned subsidiary of Apache, and DEKALB, providing for the merger of XPX
into DEKALB in a transaction by which DEKALB will be the survivor and will
become a wholly owned subsidiary of Apache. Under the terms of the Merger
Agreement, each outstanding share of Class A Stock and DEKALB Class B
(nonvoting) Stock, no par value ("Class B Stock") (Class A Stock and Class B
Stock referred to collectively as "DEKALB Stock"), will be converted into the
right to receive between 0.85 and 0.90 shares of the common stock of Apache,
$1.25 par value per share ("Apache Stock").
In connection with the Merger Agreement, holders of 1,202,403 shares of
Class A Stock ("Signatory Stockholders") entered into agreements dated December
21, 1994 ("Stockholder Agreements") with Apache, each agreeing to vote the
shares of Class A Stock owned or controlled by the Signatory Stockholders in
favor of the merger contemplated by the Merger Agreement (the "Merger") and
against any action which would breach the Merger Agreement. Additional
provisions of the Stockholder Agreements are discussed in Item 4 hereof.
Other than the shares of Apache Stock to be received by the holders of
DEKALB Stock pursuant to the Merger Agreement, there is no separate or
additional consideration payable to the Signatory Stockholders under the
Stockholder Agreements. The Merger Agreement and the form of Stockholder
Agreement are listed as Exhibits (a) and (b) under Item 7 hereof, and are
incorporated into this Item 3 by reference.
Page 3 of 7
<PAGE> 4
If the Merger is consummated, it is contemplated that between 8.2
million and 8.7 million shares of Apache Stock will be issued. Based on the
closing price of Apache Stock on December 20, 1994, and taking into account
DEKALB's debt in the amount of approximately $60 million, the Merger is valued
at approximately $285 million.
Neither Apache nor any person named in Schedule I to Item 2 hereof had
invested any funds in the Common Stock as of December 30, 1994.
ITEM 4. PURPOSE OF TRANSACTION
The Signatory Stockholders and Apache are parties to the Stockholder
Agreements as described in Item 3 hereof, which is incorporated herein by
reference in response to this Item 4. As a result, Apache is deemed to be a
beneficial owner of the 1,202,403 shares of Class A Stock covered by the
Stockholder Agreements, as set forth below:
<TABLE>
<CAPTION>
SIGNATORY NUMBER OF % OF CLASS A
STOCKHOLDER SHARES OUTSTANDING
<S> <C> <C>
Virginia Roberts Holt 101,053 4.4
Terrance K. Holt 26,584 1.2
Douglas C. Roberts 179,152 7.8
Lynne King Roberts 28,824 1.3
John T. Roberts 131,180 5.7
Robin Richey Roberts 25,993 1.1
Thomas H. Roberts III 198,390 8.6
Susan Shawn Roberts 92,976 4.0
Ami L. Domini 254,240 11.0
Thomas H. Roberts, Jr. 164,011 7.1
</TABLE>
Under the provisions of the Stockholder Agreements, each of the
Signatory Stockholders has agreed to vote their shares of Class A Stock (i) in
favor of the Merger and adoption of the Merger Agreement, (ii) against any act
that would breach the Merger Agreement, and (iii) except as otherwise agreed to
in writing in advance by Apache, against any business combination, sale of
assets or reorganization or recapitalization, any change in DEKALB's board of
directors, any amendment of DEKALB's certificate of incorporation or bylaws or
corporate structure or business, or any other matter than may interfere with or
adversely affect the contemplated economic benefits to Apache of the Merger or
Merger Agreement, at any meeting of stockholders of DEKALB (or consent in lieu
thereof). The Signatory Stockholders also agreed (x) not to solicit any
takeover proposals, (y) not to grant a proxy to another person, sell or
otherwise encumber their shares, or convert their shares of Class A Stock into
shares of Class B Stock, and (z) to waive all appraisal rights with respect to
the Merger. The Stockholder Agreements will terminate automatically upon
consummation of the Merger or termination of the Merger Agreement by its terms.
While parties to the Stockholder Agreements, the Signatory Stockholders
continue to be entitled to all dividends, distributions and other incidents of
ownership on the shares of Class A Stock.
The respective obligations of Apache and DEKALB to consummate the Merger
are subject to the satisfaction of certain conditions, including the following:
(i) approval of the Merger and adoption of the Merger Agreement by the holders
of a majority of the outstanding shares of Class A Stock; (ii) expiration
Page 4 of 7
<PAGE> 5
or termination of the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"); (iii) the
absence of any order making the Merger illegal or otherwise prohibiting
consummation of the Merger; (iv) Apache having no reason to believe, based upon
the advice of Arthur Andersen LLP, Apache's independent public accountants,
that the Merger should not be treated for financial accounting purposes as a
"pooling of interests"; (v) the accuracy of the representations and warranties
of each party and compliance with all agreements and covenants by each party;
(vi) the absence of certain regulatory conditions; (vii) the receipt of certain
tax opinions; (viii) the effectiveness of the registration statement, relating
to the shares of Apache Stock to be issued in the Merger, filed by Apache with
the Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"); (ix) the approval for listing on the
New York Stock Exchange of the shares of Apache Stock to be issued in the
Merger; (x) the absence of certain material adverse changes; (xi) the receipt
of comfort letters from Apache's and DEKALB's respective independent public
accountants, and (xii) the receipt of any other required third party or
governmental approvals or consents.
If the Merger is consummated, (i) DEKALB will become a wholly owned
subsidiary of Apache, (ii) the directors and officers of DEKALB will be
replaced by the directors and officers of XPX; however, the certificate of
incorporation and bylaws of DEKALB in effect immediately prior to the Merger
will remain in effect after the Merger until thereafter changed or amended,
(iii) the Class B Stock will cease to be publicly traded and will be delisted
from the NASDAQ Over-the-Counter Market, and (iv) DEKALB may cease to be
subject to the reporting requirements of the Securities Exchange Act of 1934,
as amended. The Class A Stock is not publicly traded.
There can be no assurances that the conditions specified in the Merger
Agreement will be satisfied or waived or that the Merger will be consummated,
although Apache knows of no reason why the Merger will not be consummated.
Copies of the Merger Agreement and the form of Stockholder Agreement are listed
as Exhibits (a) and (b) under Item 7 hereof, and are incorporated into this
Item 4 by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
As of the date of this report, Apache is deemed to beneficially own an
aggregate of 1,202,403 shares of Class A Stock. According to information
contained in the Merger Agreement, the shares that Apache is deemed to
beneficially own represent 52.2 percent of the total 2,304,007 shares of Class
A Stock outstanding as of December 15, 1994. As described in Items 3 and 4
hereof, which are incorporated herein by reference in response to this Item 5,
Apache is deemed to have shared voting power over the 1,202,403 shares of Class
A Stock covered by the Stockholder Agreements; however, Apache has no
dispositive power over those shares.
Pursuant to provisions of the Stockholder Agreements, the Signatory
Stockholders named under Item 4 hereof are entitled to all dividends and
distributions on the shares of Class A Stock covered by the Stockholder
Agreements. The percentage of the total 2,304,007 shares of Class A Stock
outstanding as of December 15, 1994, attributable to each of the Signatory
Stockholders is set forth in Item 4 hereof, which is incorporated by reference
in response to this Item 5.
Except as described in this Item 5, neither Apache nor any person named
in Schedule I to Item 2 hereof beneficially owned shares of the Class A Stock
as of December 30, 1994, or had any transactions in the Class A Stock during
the preceding 60 days.
Page 5 of 7
<PAGE> 6
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The Signatory Stockholders and Apache are parties to the Stockholder
Agreements as described in Items 3 and 4 hereof, which are incorporated herein
by reference in response to this Item 6. The form of Stockholder Agreement is
listed as Exhibit (b) under Item 7 hereof and is incorporated into this Item 6
by reference.
Certain stockholders, directors and officers of DEKALB may be deemed to
be "affiliates" of DEKALB pursuant to the rules and regulations under the
Securities Act (the "Affiliates"). In connection with the Merger Agreement,
certain of those Affiliates entered into agreements dated December 21, 1994
(the "Affiliate Agreements") with Apache, each agreeing not to sell or
otherwise transfer any shares of DEKALB Stock within 30 days prior to the
effective date of the Merger or any Apache Stock thereafter prior to the
publication of financial results that include at least 30 days of post-Merger
combined operations of Apache and DEKALB. The form of Affiliate Agreement is
listed as Exhibit (c) under Item 7 hereof and is incorporated into this Item 6
by reference.
Except as described in this Item 6, there are no contracts,
arrangements, agreements, understandings or relationships between Apache and
any person with respect to any securities of DEKALB. To the best knowledge of
Apache, except as described in this Item 6, there are no contracts,
arrangements, agreements, understandings or relationships between any director
or executive officer of Apache and any person with respect to any securities of
DEKALB.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
(a) Agreement and Plan of Merger among Apache, XPX, and DEKALB, dated
December 21, 1994 (incorporated by reference to Exhibit 99.1
to Apache's current report on Form 8-K, dated December 21,
1994, File No. 1-4300, filed with the SEC on December 29,
1994).
(b) Form of Stockholder Agreement, dated December 21, 1994.
(c) Form of Affiliate Agreement, dated December 21, 1994.
Page 6 of 7
<PAGE> 7
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: January 3, 1995
APACHE CORPORATION
/s/ Z. S. Kobiashvili
Z.S. Kobiashvili
Vice President, General Counsel
and Secretary
Page 7 of 7
<PAGE> 8
SCHEDULE I
(to Item 2)
EXECUTIVE OFFICERS AND DIRECTORS OF APACHE CORPORATION
The name, residence or business address, present principal occupation
or employment, and citizenship of each director and executive officer of Apache
Corporation are set forth below.
<TABLE>
<CAPTION>
NAME AND POSITION RESIDENCE OR BUSINESS
- ----------------- ---------------------
WITH RESPECT TO APACHE ADDRESS CITIZENSHIP
- ---------------------- ------- -----------
<S> <C> <C>
Frederick M. Bohen Founders Hall, Box 500 United States
Director 1230 York Avenue
New York, New York 10021
Virgil B. Day 805 Third Avenue, 22nd Floor United States
Director New York, New York 10022
*G. Steven Farris Suite 100 United States
Director, President and 2000 Post Oak Boulevard
Chief Operating Officer Houston, Texas 77056
Randolph M. Ferlic 270N Doctors' Building United States
Director Omaha, Nebraska 68131
</TABLE>
I-1
<PAGE> 9
<TABLE>
<CAPTION>
NAME AND POSITION RESIDENCE OR BUSINESS
- ----------------- ---------------------
WITH RESPECT TO APACHE ADDRESS CITIZENSHIP
- ---------------------- ------- -----------
<S> <C> <C>
Eugene C. Fiedorek Suite 1100 United States
Director 6688 N. Central Expressway
Dallas, Texas 75206
W. Brooks Fields Suite 100 United States
Director 2000 Post Oak Boulevard
Houston, Texas 77056
Robert V. Gisselbeck Suite E, 3936 Tamiami Tr. N. United States
Director Naples, Florida 33940
Stanley K. Hathaway Suite 402 United States
Director 2424 Pioneer Avenue
Cheyenne, Wyoming 82001
John A. Kocur 1531 Defense Highway United States
Director Gambrills, Maryland 21054
</TABLE>
I-2
<PAGE> 10
<TABLE>
<CAPTION>
NAME AND POSITION RESIDENCE OR BUSINESS
- ----------------- ---------------------
WITH RESPECT TO APACHE ADDRESS CITIZENSHIP
- ---------------------- ------- -----------
<S> <C> <C>
*Raymond Plank Suite 100 United States
Director, Chairman of the Board and Chief 2000 Post Oak Boulevard
Executive Officer Houston, Texas 77056
Jay A. Precourt 1301 McKinney, Suite 700 United States
Director Houston, Texas 77010
Joseph A. Rice Suite 100 United States
Director 2000 Post Oak Boulevard
Houston, Texas 77056
*James R. Bauman Suite 100 United States
Senior Vice President - 2000 Post Oak Boulevard
Business Development Houston, Texas 77056
*H. Craig Clark Suite 100 United States
Vice President - 2000 Post Oak Boulevard
Domestic Production Houston, Texas 77056
</TABLE>
I-3
<PAGE> 11
<TABLE>
<CAPTION>
NAME AND POSITION RESIDENCE OR BUSINESS
- ----------------- ---------------------
WITH RESPECT TO APACHE ADDRESS CITIZENSHIP
- ---------------------- ------- -----------
<S> <C> <C>
*Lisa A. Floyd Suite 100 United States
Vice President - 2000 Post Oak Boulevard
Technical Services Houston, Texas 77056
*Mark A. Jackson Suite 100 United States
Vice President - Finance 2000 Post Oak Boulevard
Houston, Texas 77056
*Jon A. Jeppesen Suite 100 United States
Vice President - Domestic Exploration and 2000 Post Oak Boulevard
Development Houston, Texas 77056
*Zurab S. Kobiashvili Suite 100 United States
Vice President, General Counsel 2000 Post Oak Boulevard
and Secretary Houston, Texas 77056
*Clyde E. McKenzie Suite 100 United States
Vice President and Treasurer 2000 Post Oak Boulevard
Houston, Texas 77056
</TABLE>
I-4
<PAGE> 12
<TABLE>
<CAPTION>
NAME AND POSITION RESIDENCE OR BUSINESS
- ----------------- ---------------------
WITH RESPECT TO APACHE ADDRESS CITIZENSHIP
- ---------------------- ------- -----------
<S> <C> <C>
*Thomas J. Mulkey Suite 100 United States
Vice President - Marketing 2000 Post Oak Boulevard
Houston, Texas 77056
*Roger B. Plank Suite 100 United States
Vice President - Corporate Planning 2000 Post Oak Boulevard
Houston, Texas 77056
*Floyd R. Price Suite 100 United States
Vice President - International 2000 Post Oak Boulevard
Exploration and Production Houston, Texas 77056
*Roger B. Rice Suite 100 United States
Vice President - Human Resources 2000 Post Oak Boulevard
and Administration Houston, Texas 77056
*R. Kent Samuel Suite 100 United States
Controller and 2000 Post Oak Boulevard
Chief Accounting Officer Houston, Texas 77056
</TABLE>
I-5
<PAGE> 13
Mr. Bohen is the executive vice president and chief operating officer
of The Rockefeller University at the address set forth above.
Mr. Day is a senior partner in the law firm of Vedder, Price, Kaufman,
Kammholz & Day at the address set forth above.
Mr. Ferlic is retired.
Mr. Fiedorek is the president and managing director of EnCap
Investments L.C., an energy investment banking firm, at the address set forth
above.
Mr. Fields is retired.
Mr. Gisselbeck is the president of Gisselbeck & Associates, a real
estate development company at the address set forth above.
Mr. Hathaway is a senior partner in the law firm of Hathaway, Speight,
Kunz & Trautwein at the address set forth above.
Mr. Kocur is an attorney in private practice at the address set forth
above.
Mr. Precourt is the vice chairman of the board and chief executive
officer of Tejas Gas Corporation, an intrastate gas pipeline company, at the
address set forth above.
Mr. Joseph Rice is retired.
* The principal occupation of the named persons is the position indicated in
the table.
I-6
<PAGE> 14
EXHIBIT INDEX
Exhibit
No.
-------
7(b) Form of Stockholder Agreement, dated December 21, 1994.
7(c) Form of Affiliate Agreement, dated December 21, 1994.
<PAGE> 1
EXHIBIT 7(b)
STOCKHOLDER AGREEMENT
This Stockholder Agreement ("Agreement") is entered into effective for
all purposes as of December 21, 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);
<PAGE> 2
(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 Stockholder
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.
2
<PAGE> 3
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.
3
<PAGE> 4
(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
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<PAGE> 5
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.
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<PAGE> 6
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.
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<PAGE> 7
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
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<PAGE> 8
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
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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:________________________________
________________________________________
________________________________________
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<PAGE> 1
EXHIBIT 7(c)
AFFILIATE AGREEMENT
Apache Corporation
2000 Post Oak Blvd.
Suite 100
Houston, Texas 77056-4400
Ladies and Gentlemen:
I have been advised that as of the date hereof, I may be deemed to be
an "affiliate" of DEKALB Energy Company, a Delaware corporation (the
"Company"), as that term is defined for purposes of paragraphs (c) and (d) of
Rule 145 of the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act").
Pursuant to the terms and subject to the conditions of that certain
Agreement and Plan of Merger by and among Apache Corporation, a Delaware
corporation ("Apache"), XPX Acquisitions, Inc., a Delaware corporation and a
wholly owned subsidiary of Apache ("Sub"), and the Company dated as of December
21, 1994 (the "Merger Agreement"), providing for, among other things, the
merger of Sub with and into the Company (the "Merger"), I will be entitled to
receive shares of common stock, par value $1.25 per share, of Apache ("Apache
Common Stock") in exchange for shares of Class A Stock, no par value, or Class
B (nonvoting) Stock, no par value, of the Company (collectively, "Company
Stock") owned by me at the Effective Time (as defined in the Merger Agreement)
of the Merger, as determined pursuant to the Merger Agreement.
I further understand that the Merger will be treated for financial
accounting purposes as a "pooling of interests" in accordance with generally
accepted accounting principles and that the staff of the SEC has issued certain
guidelines that should be followed to ensure such "pooling of interests"
treatment.
In consideration of the Merger Agreement, the agreement of Apache
contained herein, Apache's reliance on this letter in connection with the
consummation of the Merger and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, I hereby represent,
warrant and agree that: (i) I will not make any sale, transfer or other
disposition of the Company Stock owned by me during the period commencing 30
days before the Effective Time and ending at the earlier of the Effective Time
and the termination of the Merger Agreement; and (ii) I will not make any sale,
transfer or other disposition of Apache Common Stock owned by me after the
Effective Time until such time as financial statements that include at least 30
days of combined operations of the Company and Apache after the Merger shall
have been publicly reported, unless I shall have delivered to Apache prior to
any such sale, transfer or other disposition, a written opinion from Arthur
Andersen LLP, independent public accountants for Apache, or a written no-
action letter from the accounting staff of the SEC, in either case in form and
substance reasonably satisfactory to Apache, to the effect that such sale,
transfer or other disposition will not cause the Merger not to be treated as a
"pooling of interest"
<PAGE> 2
for financial accounting purposes in accordance with generally accepted
accounting principles and the Rules and Regulations and interpretations thereof
of the SEC and (iii) I will not make any sale, transfer or other disposition of
any shares of Apache Common Stock received by me pursuant to the Merger in
violation of the Securities Act or the Rules and Regulations.
I have been advised that the issuance of the shares of Apache Common
Stock pursuant to the Merger will have been registered with the SEC under the
Securities Act on a Registration Statement on Form S-4. However, I have also
been advised, and I agree, that since I may be deemed to be an affiliate of the
Company at the time the Merger is submitted for a vote of the stockholders of
the Company, the Apache Common Stock received by me pursuant to the Merger can
be sold by me only (i) pursuant to an effective registration statement under
the Securities Act, (ii) in conformity with the volume and other limitations of
Rule 145 promulgated by the SEC under the Securities Act or (iii) in reliance
upon an exemption from registration that is available under the Securities Act.
I also understand and agree that stop- transfer instructions will be given to
Apache's transfer agent with respect to the Apache Common Stock to be received
by me pursuant to the Merger and that there will be placed on the certificates
representing such shares of Apache Common Stock, or any substitutions therefor,
a legend stating in substance as follows:
"These shares were issued in a transaction to which Rule 145
promulgated under the Securities Act of 1933 applies. These shares
may only be transferred in accordance with the terms of such Rule and
an Affiliate Agreement between the original holder of such shares and
Apache Corporation, a copy of which agreement is on file at the
principal offices of Apache Corporation."
It is understood and agreed that the legend set forth above shall be removed,
upon surrender of certificates bearing such legend, by delivery of substitute
certificates without such legend if I shall have delivered to Apache an opinion
of counsel, the reasonable cost of which would be borne by Apache, in form and
substance reasonably satisfactory to Apache, to the effect that the sale or
disposition of the shares represented by the surrendered certificates may be
effected without registration of the offering, sale and delivery of such shares
under the Securities Act.
By its execution hereof, Apache agrees that, as long as I own any
Apache Common Stock to be received by me pursuant to the Merger which remains
subject to Rule 145 under the Securities Act, Apache (i) will make all
reasonable efforts to make timely filings with the SEC of all reports required
to be filed by it pursuant to the Securities Exchange Act of 1934, as amended,
and (ii) will promptly furnish upon written request of the undersigned a
written statement confirming that such reports have been so timely filed.
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If you are in agreement with the foregoing, please so indicate by
signing below and returning a copy of this letter to the undersigned, at which
time this letter shall become a binding agreement between us.
Very truly yours,
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
Address:________________________________
Accepted this ________ day
of _______________, 1994
APACHE CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
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