FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Devon Energy Corporation
(Exact name of registrant as specified in its charter)
Oklahoma 73-1474008
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
20 North Broadway, Suite 1500
Oklahoma City, Oklahoma 73102-8260
(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which each class is to be
registered
Common Stock, Par Value $.10 American Stock Exchange
Securities to be registered pursuant to Section 12(b) of the Act:
None
(Title of Class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. General Information
(a) The Registrant was organized as a corporation
under the laws of the State of Oklahoma on April 13, 1995 under
the name Devon Oklahoma Corporation.
(b) The Registrant's fiscal year ends on December 31.
Item 2. Transaction of Succession.
(a) At the effective time of the reorganization
described in paragraph (b) hereof, the common stock, par value
$.10 per share, of Devon Energy Corporation, a Delaware
corporation ("Devon"), was registered pursuant to Section 12(b)
of the Securities Exchange Act of 1934, as amended (the "Act").
(b) On June 7, 1995, the Registrant acquired the stock
of Devon by means of the reorganization. Pursuant to the
reorganization, Devon was merged with and into Devon Oklahoma
Corporation, a newly incorporated, wholly-owned subsidiary of
Devon (the "Merger"). At the effective time of the Merger, each
of the outstanding shares of Devon Common Stock was converted
into one share of the Registrant's Common Stock, par value $.10
per share, the officers and directors of Devon became the
officers and directors of the Registrant and the name of the
Registrant was changed to Devon Energy Corporation.
Item 3. Securities to be Registered.
The class of securities being registered hereby is the
Registrant's Common Stock, of which 120 million shares are
presently authorized and 22,051,796 shares were issued and
outstanding immediately after the effective time of the Merger.
As of the effective time no shares of the Registrant's Common
Stock were held by or for the account of the Registrant.
Item 4. Description of Registrant's Securities to be
Registered.
General
The authorized capital stock of Registrant consists of
120,000,000 shares of Common Stock, par value $0.10 per share,
and 3,000,000 shares of preferred stock, par value $1.00 per
share.
Registrant's Common Stock
Holders of Registrant's Common Stock are entitled to
receive dividends out of funds legally available therefor when
and if declared by the Board of Directors.
Subject to the rights of the holders of any outstanding
shares of preferred stock, holders of Registrant's Common Stock
are entitled to cast one vote for each share held of record on
all matters submitted to a vote of stockholders. Holders of
Registrant's Common Stock are not entitled to cumulative voting
rights for the election of directors.
Except pursuant to Registrant's share rights plan
described below, holders of Registrant's Common Stock have no
preemptive, conversion or other rights to subscribe for or
purchase any securities of Registrant. There are no redemption
or sinking fund provisions applicable to the Registrant's Common
Stock. Upon liquidation or dissolution of Registrant, whether
voluntary or involuntary, the holders of Registrant's Common
Stock are entitled to share ratably in the assets of Registrant
available for distribution after provision for creditors and
holders of preferred stock which Registrant may issue in the
future.
Registrant's Preferred Stock
The preferred stock (which is of a type commonly
referred to as "blank check preferred") may be issued in one or
more series. Registrant's Board of Directors is authorized to
establish certain attributes of such series including, but not
limited to, (i) the designation and number of shares constituting
each series, (ii) the dividend rate payable and whether such
dividends are cumulative or non-cumulative, (iii) voting rights,
if any, (iv) redemption rights, if any, (v) conversion or
preference rights, if any, and (vi) any other rights and
qualifications, preferences and limitations or restrictions on
the shares of such series.
Series A Preferred Stock. Registrant's Board of
Directors has designated 300,000 shares of preferred stock as
Series A Junior Participating Preferred Stock (the "Series A
Preferred Stock") in connection with the share rights plan
described below. See "Share Rights Plan" for a description of
the Series A Preferred Stock. The Series A Preferred Stock ranks
prior to the Common Stock but junior to all series of any other
class of preferred stock. No Series A Preferred Stock has been
issued.
Additional Series. The Board of Directors of
Registrant may direct the issuance up to 2,700,000 shares of
preferred stock in one or more series and with rights,
preferences, privileges and restrictions, including dividend
rights, voting rights, conversion rights, terms of redemption and
liquidation preferences, that may be fixed or designated by the
Board of Directors pursuant to a certificate of designation
without any further vote or action by Registrant's stockholders.
The issuance of preferred stock may have the effect of delaying,
deferring or preventing a change in control of Registrant. The
specific terms of a particular series of preferred stock will be
described in a certificate of designation relating to that
series.
Business Combinations
Article Eleventh of the Registrant's Certificate of
Incorporation contains limitations on business combinations with
an "interested shareholder" or affiliates thereof for a period of
three years from the date a person becomes an interested
shareholder. The Oklahoma General Corporation Act (the "Oklahoma
Act") has provisions placing limitations on such business
combinations. The Certificate of Incorporation of Registrant has
been made to conform in certain respects to the Oklahoma Act.
The Oklahoma Act provides that business combinations
with an interested shareholder or affiliate can be effected if
(i) prior to the person becoming an interested shareholder the
board of directors approved either the business combination or
the transaction which resulted in such a party becoming an
interested shareholder, (ii) pursuant to the transaction which
resulted in his becoming an interested shareholder, the
interested shareholder acquired at least 85% of the outstanding
voting stock of the corporation excluding stock held by officers
and directors and certain employee stock plans, or (iii) the
business combination is approved by the board and authorized at
an annual or special meeting by the affirmative vote of at least
66 2/3% of the outstanding voting stock not owned by the
interested shareholder. "Interested Shareholder" is defined as
one who is the beneficial owner of 15% or more of the voting
stock.
The Board of Directors may permit, without super-
majority shareholder approval, a business combination with an
interested shareholder after that person has become an interested
shareholder only if the business combination has been proposed
prior to the consummation or abandonment of a third-party
transaction and subsequent to the earlier of the public
announcement or required notice of the third-party transaction.
This provision is essentially a "releasing mechanism" which
provides that if a third-party may consummate a business
combination without super-majority shareholder approval, the
interested shareholders are released from the super-majority
requirement as well (i.e., only majority approval is required
under those circumstances where there are two or more suitors).
For example, if a third party commences a tender offer for
outstanding stock representing 50% or more of the outstanding
voting power, an interested shareholder would be permitted to
consummate a merger with the Registrant without super-majority
shareholder approval, i.e., with only majority approval.
Share Rights Plan
Under the Rights Agreement dated as of April 17, 1995
(the "Rights Agreement"), between Registrant and The First
National Bank of Boston, as rights agent, stockholders have one
right with respect to each share of Registrant's Common Stock
held. The certificates representing outstanding shares of
Registrant's Common Stock also evidence one right for each share
represented and contain a legend incorporating the Rights
Agreement by reference. Separate right certificates will be
distributed (the "Distribution Date") upon the earlier to occur
of ten business days following (i) a public announcement that a
person or group (an "Acquiring Person") has acquired or obtained
the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of Registrant's Voting Stock (the "Stock
Acquisition Date") or (ii) the commencement of a tender offer or
exchange offer that could result in a person or group
beneficially owning 15% or more of the outstanding shares of
Registrant's Voting Stock. The rights are not exercisable until
the separate right certificates have been distributed and will
expire at the close of business on April 16, 2005, unless earlier
redeemed by Registrant. Except as otherwise determined by the
Board of Directors, only shares of Registrant's Voting Stock
issued prior to the Distribution Date will be issued with rights.
After the Distribution Date, each right not owned by an
Acquiring Person entitles the registered holder to purchase one
one-hundredth of a share of Series A Preferred Stock at a
purchase price of $75.00, subject to adjustment in certain
circumstances. Holders of the Series A Preferred Stock will be
entitled to receive cumulative quarterly dividends in an amount
per share equal to the greater of $10 or 100 times the aggregate
per share amount of all dividends (other than stock dividends)
declared on Registrant's Common Stock since the first issuance of
Series A Preferred Stock. Holders of the Series A Preferred
Stock will be entitled to 100 votes per share (subject to
adjustment to prevent dilution) on all matters submitted to a
vote of the stockholders.
The Series A Preferred Stock is neither redeemable nor
convertible. Before the holders of Registrant's Common Stock or
any other junior stock receive any liquidating distributions, the
holders of shares of Series A Preferred Stock are entitled to a
liquidation preference from available assets of Registrant of
$100 per share, plus accrued and unpaid dividends, but in any
event such holders are entitled to receive an aggregate
distribution per share which is equal to 100 times the aggregate
amount to be distributed per share of Registrant's Common Stock,
subject to adjustment to prevent dilution.
After a person becomes an Acquiring Person, each right
not beneficially owned by an Acquiring Person entitles its holder
to purchase, in lieu of Series A Preferred Stock, Registrant's
Common Stock having a value equal to two times the exercise price
of the right ($75.00, subject to adjustment to prevent dilution).
If certain business combinations occur, the rights
entitle the holder to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise
price of the right instead of Common Stock of the Registrant.
Until ten business days following the Stock Acquisition
Date, Registrant may redeem the rights in whole, but not in part,
at a price of $0.01 per right. Under certain circumstances, the
decision to redeem requires the concurrence of a majority of the
directors who were directors prior to the Stock Acquisition Date
and successors nominated or approved by them. After the
redemption period has expired, Registrant's right of redemption
may be reinstated if the beneficial ownership of an Acquiring
Person is reduced to 15% or less of the outstanding shares of
Registrant's Voting Stock in one or more transactions not
involving the Registrant. Upon proper action of the Board of
Directors, the rights will terminate and the holders of rights
will be entitled to receive only the $0.01 redemption price.
Until a right is exercised, the holder thereof, as
such, has no rights as a stockholder. While the distribution of
the rights will not be taxable to shareholders or to Registrant,
shareholders may, depending upon the circumstances, recognize
taxable income in the event that the rights become exercisable
for Registrant's Common Stock or for common stock of the
Acquiring Person as set forth above.
The provisions of the Rights Agreement, including the
Purchase Price, may be amended by the Board of Directors of
Registrant prior to the Distribution Date. After the
Distribution Date, the Board may amend the Rights Agreement to
cure any ambiguity, defect or inconsistency, to make changes
which do not adversely affect the interests of holders of rights
(excluding the interests of any Acquiring Person), or to shorten
or lengthen any time period under the Rights Agreement (except
the time period governing redemption of the rights).
Written Consent by Stockholders Prohibited
The Oklahoma Act does not permit taking of any action
by stockholders pursuant to written consent.
<PAGE>
Item 5. Financial Statements and Exhibits.
(a) None. The capital structure and balance sheet of
the Registrant immediately after the Merger will be the same as
those of the predecessor.
(b) The following are filed as exhibits hereto:
2.1 Agreement and Plan of Merger and Reorganization by and
among Registrant and Devon Energy Corporation dated as
of April 13, 1995 (incorporated herein by reference to
Exhibit A to Devon Energy Corporation's definitive
Proxy Statement for its 1995 Annual Meeting of
Shareholders).
2.2 Proxy Statement with respect to the Merger
(incorporated herein by reference to Devon Energy
Corporation's definitive Proxy Statement for its 1995
Annual Meeting of Shareholders).
3.1 Certificate of Incorporation of Registrant as filed
with the Secretary of State of Oklahoma on April 13,
1995 (incorporated herein by reference to Exhibit B to
Devon Energy Corporation's definitive Proxy Statement
for its 1995 Annual Meeting of Shareholders).
3.2 Bylaws of the Registrant, dated as of April 13, 1995.
3.3 Certificate of Designations of Series A Junior
Participating Preferred Stock of the Registrant.
4.1 Form of Common Stock Certificate.
4.2 Rights Agreement between Registrant and The First
National Bank of Boston.
10.1 Credit Agreement dated October 7, 1994, among Devon
Energy Corporation (Nevada) as Borrower, Devon Energy
Corporation, a Delaware corporation and Devon Energy
Operating Corporation, as Guarantors, NationsBank of
Texas, N.A., as Agent, and NationsBank of Texas, N.A.,
Bank One, Texas, N.A., Bank of Montreal and First Union
National Bank of North Carolina, as Lenders
(incorporated herein by reference to Exhibit 10.1 to
Devon Energy Corporation's Quarterly Report on Form
10-Q for the quarter ended September 30, 1994).
10.2 First Amendment, dated January 27, 1995, to Credit
Agreement among Devon Energy Corporation (Nevada), as
Borrower, Devon Energy Corporation, a Delaware
corporation and Devon Energy Operating Corporation, as
Guarantors, NationsBank of Texas, N.A., as Agent, and
NationsBank of Texas, N.A., Bank One, Texas, N.A., Bank
of Montreal and First Union National Bank of North
Carolina, as Lenders (incorporated by reference to
Exhibit 10.2 to Devon Energy Corporation's Annual
Report on Form 10-K for the year ended December 31,
1994).
10.3 Devon Energy Corporation [a Delaware corporation] 1988
Stock Option Plan [incorporated herein by reference to
Exhibit 10.4 to Devon Energy Corporation's Registration
Statement on Form S-4 (No. 33-23564)].*
10.4 Devon Energy Corporation 1993 Stock Option Plan
(incorporated herein by reference to Exhibit A to Devon
Energy Corporation's Proxy Statement for the 1993
Annual Meeting of Shareholders).*
10.5 Sale and Purchase Agreement by and between Fina Oil and
Chemical Company, a Delaware corporation, and Devon
Energy Corporation (Nevada), a Nevada corporation
(incorporated herein by reference to Exhibit 2 to Devon
Energy Corporation's Current Report on Form 8-K dated
as of June 28, 1993).
10.6 Severance Agreement between Devon Energy Corporation
(Nevada), Devon Energy Corporation (Delaware) and Mr.
J. Larry Nichols, dated December 3, 1992 (incorporated
herein by reference to Exhibit 10.10 to Devon Energy
Corporation's Amendment No. 1 to Annual Report on Form
10-K for the year ended December 31, 1992).*
10.7 Severance Agreement between Devon Energy Corporation
(Nevada), Devon Energy Corporation (Delaware) and Mr.
H. R. Sanders, Jr., dated December 3, 1992
(incorporated herein by reference to Exhibit 10.11 to
Devon Energy Corporation's Amendment No. 1 to Annual
Report on Form 10-K for the year ended December 31,
1992).*
10.8 Severance Agreement between Devon Energy Corporation
(Nevada), Devon Energy Corporation (Delaware) and Mr.
J. Michael Lacey, dated December 3, 1992 (incorporated
herein by reference to Exhibit 10.12 to Devon Energy
Corporation's Amendment No. 1 to Annual Report on Form
10-K for the year ended December 31, 1992).*
10.9 Severance Agreement between Devon Energy Corporation
(Nevada), Devon Energy Corporation (Delaware) and Mr.
H. Allen Turner, dated December 3, 1992 (incorporated
herein by reference to Exhibit 10.13 to Devon Energy
Corporation's Amendment No. 1 to Annual Report on Form
10-K for the year ended December 31, 1992).*
10.10 Severance Agreement between Devon Energy Corporation
(Nevada), Devon Energy Corporation (Delaware) and Mr.
Darryl G. Smette, dated December 3, 1992 (incorporated
herein by reference to Exhibit 10.14 to Devon Energy
Corporation's Amendment No. 1 to Annual Report on Form
10-K for the year ended December 31, 1992).*
10.11 Severance Agreement between Devon Energy Corporation
(Nevada), Devon Energy Corporation (Delaware) and Mr.
William T. Vaughn, dated December 3, 1992 (incorporated
herein by reference to Exhibit 10.15 to Devon Energy
Corporation's Amendment No. 1 to Annual Report on Form
10-K for the year ended December 31, 1992).*
10.12 Stock Purchase Agreement dated December 22, 1993,
between Devon Energy Corporation (Delaware) and John R.
Fitzgerald (incorporated herein by reference to
Exhibit 1 to Devon Energy Corporation's Schedule 13D
dated as of December 22, 1993).
10.13 Schedule identifying other Stock Purchase Agreement
entered into by Devon Energy Corporation (Delaware)
with certain holders of Alta Energy Corporation common
stock (incorporated herein by reference to Exhibit 2 to
Devon Energy Corporation's Schedule 13D dated as of
December 22, 1993).
10.14 Stock Purchase Agreement dated January 14, 1994,
between GSS Investments Corp [a wholly-owned subsidiary
of Devon Energy Corporation [Delaware] and Princor
Growth Fund, Inc. (incorporated herein by reference to
Exhibit 3 to Amendment No. 2 to Devon Energy
Corporation's Schedule 13D dated as of January 7,
1994).
10.15 Stock Purchase Agreement dated January 14, 1994,
between Devon Energy Corporation (Delaware) and Andrew
P, Carstensen, Jr. (incorporated herein by reference to
Exhibit 4 to Amendment No. 2 to Devon Energy
Corporation's Schedule 13D dated as of January 7,
1994).
21 Subsidiaries of Registrant
__________________
*Compensatory plan or arrangements.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly caused
this application for registration (or registration statement) to
be signed on its behalf by the undersigned, thereunto duly
authorized.
DEVON ENERGY CORPORATION
Date: June 7, 1995 By J. Larry Nichols
J. Larry Nichols, President
<PAGE>
INDEX TO EXHIBITS
Exhibit Page
No. No.
2.1 Agreement and Plan of Merger and Reorganization *
by and among Registrant and Devon Energy
Corporation dated as of April 13, 1995.
2.2 Proxy Statement with respect to the Merger. *
3.1 Certificate of Incorporation of Registrant as *
filed with the Secretary of State of Oklahoma on
April 13, 1995.
3.2 Bylaws of the Registrant, dated as of April 13,
1995.
3.3 Certificate of Designations of Series A Junior
Participating Preferred Stock of the Registrant.
4.1 Form of Common Stock Certificate.
4.2 Rights Agreement between Registrant and The
First National Bank of Boston.
10.1 Credit Agreement dated October 7, 1994, among *
Devon Energy Corporation (Nevada) as Borrower,
Devon Energy Corporation, a Delaware corporation
and Devon Energy Operating Corporation, as
Guarantors, NationsBank of Texas, N.A., as
Agent, and NationsBank of Texas, N.A., Bank One,
Texas, N.A., Bank of Montreal and First Union
National Bank of North Carolina, as Lenders.
10.2 First Amendment, dated January 27, 1995, to *
Credit Agreement among Devon Energy Corporation
(Nevada), as Borrower, Devon Energy Corporation,
a Delaware corporation and Devon Energy
Operating Corporation, as Guarantors,
NationsBank of Texas, N.A., as Agent, and
NationsBank of Texas, N.A., Bank One, Texas,
N.A., Bank of Montreal and First Union National
Bank of North Carolina, as Lenders.
10.3 Devon Energy Corporation [a Delaware *
corporation] 1988 Stock Option Plan.
10.4 Devon Energy Corporation 1993 Stock Option Plan. *
10.5 Sale and Purchase Agreement by and between Fina *
Oil and Chemical Company, a Delaware
corporation, and Devon Energy Corporation
(Nevada), a Nevada corporation.
10.6 Severance Agreement between Devon Energy *
Corporation (Nevada), Devon Energy Corporation
(Delaware) and Mr. J. Larry Nichols, dated
December 3, 1992.
10.7 Severance Agreement between Devon Energy *
Corporation (Nevada), Devon Energy Corporation
(Delaware) and Mr. H. R. Sanders, Jr., dated
December 3, 1992.
10.8 Severance Agreement between Devon Energy *
Corporation (Nevada), Devon Energy Corporation
(Delaware) and Mr. J. Michael Lacey, dated
December 3, 1992.
10.9 Severance Agreement between Devon Energy *
Corporation (Nevada), Devon Energy Corporation
(Delaware) and Mr. H. Allen Turner, dated
December 3, 1992.
10.10 Severance Agreement between Devon Energy *
Corporation (Nevada), Devon Energy Corporation
(Delaware) and Mr. Darryl G. Smette, dated
December 3, 1992.
10.11 Severance Agreement between Devon Energy *
Corporation (Nevada), Devon Energy Corporation
(Delaware) and Mr. William T. Vaughn, dated
December 3, 1992.
10.12 Stock Purchase Agreement dated December 22, *
1993, between Devon Energy Corporation
(Delaware) and John R. Fitzgerald.
10.13 Schedule identifying other Stock Purchase *
Agreement entered into by Devon Energy
Corporation (Delaware) with certain holders of
Alta Energy Corporation common stock.
10.14 Stock Purchase Agreement dated January 14, 1994, *
between GSS Investments Corp [a wholly-owned
subsidiary of Devon Energy Corporation
[Delaware] and Princor Growth Fund, Inc.
10.15 Stock Purchase Agreement dated January 14, 1994, *
between Devon Energy Corporation (Delaware) and
Andrew P, Carstensen, Jr.
21 Subsidiaries of Registrant
* Incorporated by reference.
BYLAWS
OF
DEVON OKLAHOMA CORPORATION
Effective April 13, 1995
Page
Article I - Stockholders' Meetings 1
Section 1 - Annual Meeting 1
Section 2 - Special Meeting 1
Section 3 - Notice of Meetings 1
Section 4 - Quorum 2
Section 5 - Voting 2
Section 6 - List of Stockholders 2
Section 7 - Order of Business 2
Article II - Directors 3
Section 1 - Powers 3
Section 2 - Number 3
Section 3 - Vacancies 3
Section 4 - Place of Meetings 3
Section 5 - Regular Meetings 3
Section 6 - Special Meetings 4
Section 7 - Quorum 4
Section 8 - Presence at Meeting 4
Section 9 - Action Without Meeting 4
Section 10- Committees of the Board 4
Section 11- Compensation 5
Section 12- Advisory Directors 5
Article III - Officers and Employees 5
Section 1 - Election 5
Section 2 - Term, Removal and Vacancies 5
Section 3 - Chairman of the Board 6
Section 4 - Chief Executive Officer 6
Section 5 - President 6
Section 6 - Vice Presidents 7
Section 7 - Secretary 7
Section 8 - Treasurer 7
Section 9 - Divisional Officers 7
Article IV - Stock Certificates and Transfer Books 8
Section 1 - Certificates 8
Section 2 - Record Ownership 8
Section 3 - Transfer Agent and Registrar 8
Section 4 - Lost Certificates 8
Section 5 - Transfer of Stock 9
Section 6 - Fixing Date for Determination of Share-
holders of Record 9
Article V - General Provisions 9
Section 1 - Offices 9
Section 2 - Voting of Stock 9
Section 3 - Notices 10
Section 4 - Waiver of Notice 10
Article VI - Indemnification of Officers,
Directors, Employees and Agents 10
Article VII - Amendments 12
<PAGE>
BYLAWS
OF
DEVON OKLAHOMA CORPORATION
ARTICLE I
Stockholders' Meetings
Section 1. Annual Meeting. The annual meeting of stockholders
for the election of directors and the transaction of such other
business as may properly come before the meeting shall be held
within six months following the end of the fiscal year of the
corporation at such time, date and place as shall be determined
by the board of directors. The meeting shall be held at the
principal offices of the corporation or at such other place as
shall be determined by a majority of the directors.
Section 2. Special Meeting. Special meetings of stockholders
may be called by the board of directors, or by the president, and
shall be held at such places, within or without the State of
Oklahoma, as may be specified in the call of any meeting.
Section 3. Notice of Meetings. Unless otherwise provided in the
Oklahoma General Corporation Law, written notice of every meeting
of stockholders stating the place, date, hour and, in the case of
a special meeting, purposes thereof, shall, except when otherwise
required by law, be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each
stockholder entitled to vote thereat; provided that such notice
may be waived in writing, signed by the person entitled to notice
either before or after the time stated therein. Neither the
business to be transacted at nor the purpose of any meeting need
be specified in such written waiver of notice.
At any meeting at which a quorum of stockholders is
present, in person or represented by proxy, the chairman of the
meeting or the holders of the majority of the shares of stock
present or represented by proxy may adjourn from time to time
until its business is completed. At the adjourned meeting, the
corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. Otherwise, no notice need be
given.
If mailed, notice shall be deemed to be given when
deposited in the United States mail, addressed to the stockholder
at his address as it appears on the records of the corporation,
with postage thereon prepaid.
Section 4. Quorum. The holders of a majority of the shares of
stock entitled to vote, present in person or by proxy, shall,
except as otherwise provided by law, constitute a quorum for the
transaction of business at all meetings of the stockholders.
Section 5. Voting. Unless otherwise provided by the
corporation's certificate of incorporation and any amendments
thereto or certificates of designation, each stockholder shall at
every meeting of stockholders be entitled to one vote, in person
or by proxy, for each share of stock having voting power held by
such stockholder. Unless otherwise provided by law, no proxy
shall be voted on after three years from its date unless the
proxy provides for a longer period. No vote on any matter need
be by ballot unless demanded by the holders of at least ten
percent (10%) of the shares represented and entitled to vote at
the meeting. All elections and questions shall be decided by a
plurality of the votes cast, in person or by proxy, except as
otherwise required by the laws of Oklahoma or as set forth in the
certificate of incorporation or the terms of any series of
outstanding Preferred Stock.
Section 6. List of Stockholders. Unless otherwise provided in
the Oklahoma General Corporation Law, at least ten days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder,
and the number of shares registered in the name of each
stockholder, shall be prepared by the officer in charge of the
stock ledger. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not specified, at the place where
the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are
stockholders entitled to examine the stock ledger, the list
required by this section or the books of the corporation, or to
vote in person or by proxy at any meeting of stockholders.
Section 7. Order of Business. The chairman of the meeting shall
determine the order of business and the procedure at the meeting,
including regulation of the manner of voting and the conduct of
discussion.
ARTICLE II
Directors
Section 1. Powers. The business and affairs of the corporation
shall be managed by or under the direction of its board of
directors.
Section 2. Number. The number of directors which shall
constitute the whole board shall not be less than three nor more
than fifteen, and shall consist of three directors, until within
the limits above specified, a different number of directors,
which shall constitute the whole board, shall be determined by
resolution adopted by a vote of two-thirds of the entire board,
or at an annual meeting of stockholders by the affirmative vote
of sixty-six and two-thirds percent (66 2/3%) of the outstanding
stock entitled to vote. No reduction in number shall have the
effect of removing any director prior to the expiration of his
term. The board of directors shall be divided into three classes
as nearly equal in number as possible with the term of office of
one class expiring each year. Of the directors chosen initially,
the term of office of those of the first class shall expire at
the first annual meeting after their election; the term of office
of those of the second class shall expire at the second annual
meeting after their election; and the term of office of those of
the third class shall expire at the third annual meeting after
their election. At each annual meeting held after such
classification and election, directors shall be chosen for a full
term of three years to succeed those whose terms expire. The
provisions of this section shall not be altered, amended or
repealed except by the affirmative vote of the holders of at
least eighty percent (80%) of the outstanding stock entitled to
vote thereon.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of director
may be filled by a majority of the directors then in office,
though less than a quorum, and the directors so chosen shall hold
office until the next annual election of the class for which each
such director has been chosen and until his successor is duly
elected and qualified, or until his earlier resignation or
removal.
Section 4. Place of Meetings. Board meetings may be held at
such places, within or without the State of Oklahoma, as stated
in these bylaws or as the board may from time to time determine
or as may be specified in the call of any meetings.
Section 5. Regular Meetings. The annual meeting of the board
shall be held without call or notice immediately after and at the
same general place as the annual meeting of the stockholders, for
the purpose of electing officers and transacting any other
business that may properly come before the meeting. Additional
regular meetings of the board may be held without call or notice
at such place and at such time as shall be fixed by resolution of
the board but in the absence of such resolution shall be held
upon call by the president or a majority of directors.
Section 6. Special Meetings. Special meetings of the board may
be called by the chairman of the board or the president or by a
majority of the directors then in office. Notice of special
meetings shall be given to each director at least three days
before the meeting. Such notice shall set forth the time and
place of such meeting, but need not, unless otherwise required by
law, state the purposes of the meeting. A majority of the
directors present at any meeting may adjourn the meeting from
time to time without notice other than announcement at the
meeting.
Section 7. Quorum. A majority of the total number of directors,
excluding any vacancies, shall constitute a quorum for the
transaction of business at any meeting of the board; provided,
however, that in no event shall a number which is less than
one-third (1/3) of the total number of directors constitute a
quorum. If at any meeting a quorum is not present, a majority of
the directors present may adjourn the meeting from time to time
without notice other than announcement at the meeting until a
quorum is present. The act of a majority of directors present in
person at a meeting at which a quorum is present shall be the act
of the board of directors.
Section 8. Presence at Meeting. Members of the board of
directors, or of any committee thereof, may participate in a
meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
such participation shall be deemed presence in person at such
meeting.
Section 9. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the board of directors,
or of any committee thereof, may be taken without a meeting if
all members of the board or such committee, as the case may be,
consent thereto in writing, and such written consent is filed
with the minutes of the proceedings of the board or such
committee.
Section 10. Committees of the Board. The board of directors
may, by resolution passed by a majority of the whole board,
designate one or more committees, each such committee to consist
of one or more of the directors of the corporation and shall have
such name or names as may be determined from time to time by
resolution adopted by the board. The board may designate one or
more directors as alternate members of any committee who may
replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the
resolution, shall have and may exercise the powers of the board
of directors in the management of the business and affairs of the
corporation, and generally perform such duties and exercise such
powers as may be directed or delegated by the board of directors
from time to time, and, furthermore, may authorize the seal of
the corporation to be affixed to all papers which may require it.
In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another
member of the board to act at the meeting in the place of such
absent or disqualified member. Each such committee shall keep
regular minutes of its proceedings and report the same to the
board of directors as and when required.
Section 11. Compensation. Each director shall be reimbursed for
reasonable expenses incurred in attending any meeting of the
board or of any committee of which such director shall be a
member. The board may by resolution allow reasonable fees to
some or all of the directors for attendance at any board or
committee meeting. No such payment shall preclude any directors
from serving the corporation in any other capacity and receiving
compensation therefor.
Section 12. Advisory Directors. The board of directors may
appoint individuals who may but need not be directors, officers,
or employees of the corporation to serve as members of an
advisory board of directors of the corporation and may fix fees
or compensation for attendance at meetings of any such advisory
boards. The members of any such advisory board may adopt and
from time to time may amend rules and regulations for the conduct
of their meetings and shall keep minutes which shall be submitted
to the board of directors of the corporation. The term of office
of any member of the advisory board of directors shall be at the
pleasure of the board of directors and shall expire the day of
the annual meeting of the stockholders of the corporation. The
function of any such advisory board of directors shall be to
advise with respect to the affairs of the corporation.
ARTICLE III
Officers and Employees
Section 1. Election. At the annual meeting of the board,
there shall be elected such officers as may be necessary to
enable the corporation to sign instruments and stock
certificates which comply with the Oklahoma General Corporation
Law. Such officers may include a chairman of the board, chief
executive officer, a president, one or more vice presidents (who
may be designated by different classes), a secretary, a treasurer
and other officers. No officer need be a director. Two or more
offices may be held by the same person.
Section 2. Term. Removal and Vacancies. All officers shall
serve at the pleasure of the board. Any officer elected or
appointed by the board may be removed at any time by the board
whenever in its judgment the best interests of the corporation
would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so
removed. A vacancy in any office shall be filled by the board of
directors.
Section 3. Chairman of the Board. The chairman of the board, if
one has been elected, shall preside at all meetings of the board,
stockholders and committees of which he is a member. He shall
have such powers and perform such duties as may be authorized by
the board of directors.
Section 4. Chief Executive Officer. If the board of directors
has elected a chairman of the board, it may designate the
chairman of the board as the chief executive officer of the
corporation. If no chairman of the board has been elected, or in
his absence or inability to act, or if no such designation has
been made by the board of directors, the president shall be the
chief executive officer of the corporation. The chief executive
officer shall (i) have the overall supervision of the business of
the corporation and shall direct the affairs and policies of the
corporation, subject to any directions which may be given by the
board of directors, (ii) shall have authority to designate the
duties and powers of officers and delegate special powers and
duties to specified officers, so long as such designations shall
not be inconsistent with the laws of the State of Oklahoma, these
bylaws or action of the board of directors, and shall in general
have all other powers and shall perform all other duties incident
to the chief executive officer of a corporation and such other
powers and duties as may be prescribed by the board of directors
from time to time.
Section 5. President. If the board of directors has elected a
chairman of the board and designated such officer as the chief
executive officer of the corporation, the president shall serve
as chief operating officer and be subject to the control of the
board of directors and the chairman of the board. He shall have
such powers and perform such duties as from time to time may be
assigned to him by the board of directors or the chairman of the
board. If the board of directors has not elected a chairman of
the board, or if one has been elected and has not been designated
the chief executive officer of the corporation, then the
president shall be the chief executive officer of the corporation
with the powers and duties provided in Article III, Section 4, of
these bylaws. In any event, the president shall have the power
to execute, and shall execute, bonds, deeds, mortgages,
extensions, agreements, modification of mortgage agreements,
leases and contracts or other instruments of the corporation
except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof
shall be expressly delegated by the board of directors or by the
president to some other officer or agent of the corporation. The
president may sign with the secretary or an assistant secretary,
certificates for shares of stock of the corporation, the issuance
of which shall have been duly authorized by the board of
directors, and shall vote, or give a proxy to any other person to
vote, all shares of the stock of any other corporation standing
in the name of the corporation. The president, in general, shall
have all other powers and shall perform all other duties as may
be prescribed by the board of directors from time to time.
Section 6. Vice Presidents. A vice president shall perform such
duties as may from time to time be assigned to him by the board
or by the chairman or the president. In the absence or inability
to act of the president, the vice president (or if there is more
than one vice president, in the order designated by the board
and, absent such designation, in the order of their first
election to that office) shall perform the duties and discharge
the responsibilities of the president.
Section 7. Secretary. The secretary shall be the keeper of the
corporate seal and corporate records, and shall give notice of,
attend, and record minutes of meetings of stockholders and
directors. He shall see that the seal is affixed to all
documents on which the seal is required by law to be affixed, the
execution of which on behalf of the corporation under its seal is
duly authorized in accordance with the provisions of these
bylaws. He shall, in general, perform all duties incident to the
office of secretary and such other duties as may be assigned to
him by the board or by the president. The assistant secretaries,
if any, shall have such duties as shall be delegated to them by
the secretary and, in the absence of the secretary, the senior of
them present shall discharge the duties of the secretary.
Section 8. Treasurer. The treasurer shall be responsible for
(i) the custody and safekeeping of all of the funds and
securities of the corporation, (ii) the receipt and deposit of
all moneys paid to the corporation, (iii) where necessary or
appropriate, the endorsement for collection on behalf of the
corporation of all checks, drafts, notes and other obligations
payable to the corporation, (iv) the disbursement of funds of the
corporation under such rules as the board may from time to time
adopt, (v) maintaining the general books of account of the
corporation, and (vi) the performance of such further duties as
are incident to the office of treasurer or as may be assigned to
him by the board or by the president. The assistant treasurers,
if any, shall have such duties as shall be delegated to them by
the treasurer, and in the absence of the treasurer, the senior
one of them present shall discharge the duties of the treasurer.
Section 9. Divisional Officers. The board may from time to time
appoint officers of various divisions of the corporation.
Divisional officers shall not by virtue of such appointment
become officers of the corporation. Subject to the direction of
the president of the corporation, the president of a division
shall have general charge, control and supervision of all the
business operations of his division, and the other divisional
officers shall have such duties and authority as may be
prescribed by the president of the division.
ARTICLE IV
Stock Certificates and Transfer Books
Section 1. Certificates. Every stockholder shall be entitled to
have a certificate in such form as the board shall from time to
time approve, signed by, or in the name of the corporation by (i)
the chairman of the board, if any, the president or any vice
president and (ii) the treasurer, or assistant treasurer, or the
secretary or an assistant secretary, certifying the number of
shares owned by him in the corporation. During the time in which
the corporation is authorized to issue more than one class of
stock or more than one series of any class, there shall be set
forth on the face or back of each certificate issued a statement
that the corporation will furnish without charge to each
stockholder who so requests, the designations, preferences and
relative, participating, option or other special rights of each
class of stock or series thereof of the corporation and the
qualifications, limitations or restrictions of such preferences
and/or rights.
The signatures of any of the officers on a certificate
may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer before such certificate is issued, it
may be issued by the corporation with the same effect as if he
were such officer at the date of issue.
Section 2. Record Ownership. A record of the name and address
of the holder of each certificate, the number of shares
represented thereby, and the date of issue thereof shall be made
on the corporation's books. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the
holder in fact thereof, and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in any
share on the part of any other person, whether or not it shall
have express or other notice thereof, except as required by the
laws of Oklahoma.
Section 3. Transfer Agent and Registrar. The corporation may
maintain one or more transfer offices or agencies, each in charge
of a transfer agent designated by the board, where the shares of
stock of the corporation shall be transferable. The corporation
may also maintain one or more registry offices, each in charge of
a registrar designated by the board, wherein such shares of stock
shall be registered. To the extent authorized by the board, the
same entity may serve both as a transfer agent and registrar.
Section 4. Lost Certificates. Any person claiming a stock
certificate in lieu of one lost, stolen, mutilated or destroyed
shall give the corporation an affidavit as to his ownership of
the certificate and of the facts which go to prove its loss,
theft, mutilation or destruction. He shall also, if required by
the board, give the corporation a bond, in such form as may be
approved by the board, sufficient to indemnify the corporation
against any claim that may be made against it on account of the
alleged loss or theft of the certificate or the issuance of a new
certificate.
Section 5. Transfer of Stock. Transfer of shares shall, except
as provided in Section 4 of this Article IV, be made on the books
of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and
only upon surrender for cancellation of the certificate therefor,
duly endorsed or accompanied by a written assignment of the
shares evidenced thereby.
Section 6. Fixing Date for Determination of Stockholders of
Record.
(a) In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the board may fix, in advance, a record
date, which shall not be more than sixty (60) nor less than ten
(10) days before the date of such meetings, nor more than sixty
(60) prior to any other action.
(b) A determination of stockholders of record entitled
to notice of and to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the
board may fix a new record date for the adjourned meeting.
ARTICLE V
General Provisions
Section 1. Offices. The principal office of the corporation
shall be maintained in Oklahoma City, Oklahoma, or at such other
place as the board may determine. The corporation may have such
other offices as the board may from time to time determine.
Section 2. Voting of Stock. Unless otherwise ordered by the
board, the chairman of the board, if any, the president or any
vice president shall have full power and authority, in the name
and on behalf of the corporation, to attend, act and vote at any
meeting of stockholders of any company in which the corporation
may hold shares of stock, and at any such meeting shall possess
and may exercise any and all rights and powers incident to the
ownership of such shares and which, as the holder thereof, the
corporation might possess and exercise if personally present, and
may exercise such power and authority through the execution of
proxies or may delegate such power and authority to any other
officer, agent or employee of the corporation.
Section 3. Notices. Unless otherwise provided herein, whenever
notice is required to be given, it shall not be construed to
require personal notice, but such notice may be given in writing
by depositing the same in the United States mail, addressed to
the individual to whom notice is being given at such address as
appears on the records of the corporation, with postage there on
prepaid. Such notice shall be deemed to be given at the time
when the same shall be thus deposited.
Section 4. Waiver of Notice. Whenever any notice is required to
be given, a waiver thereof in writing, signed by the person or
persons entitled to the notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VI
Indemnification of Officers, Directors,
Employees and Agents
(a) The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture or other
enterprise against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest
of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct
was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not of itself create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interest of the corporation and with respect to any
criminal action or proceeding had reasonable cause to believe
that his conduct was unlawful.
(b) The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit, if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation; except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine,
upon application, that despite the adjudication of liability, but
in the view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
(c) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized herein.
(d) The corporation may purchase (upon resolution duly
adopted by the board of directors) and maintain insurance on
behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the
power to indemnify him against such liability.
(e) To the extent that a director, officer, employee or
agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred
to herein or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(f) Every such person shall be entitled, without demand
by him upon the corporation or any action by the corporation, to
enforce his right to such indemnity in an action at law against
the corporation. The right of indemnification and advancement of
expenses hereinabove provided shall not be deemed exclusive of
any rights to which any such person may now or hereafter be
otherwise entitled and specifically, without limiting the
generality of the foregoing, shall not be deemed exclusive of any
rights pursuant to statute or otherwise, of any such person in
any such action, suit or proceeding to have assessed or allowed
in his favor against the corporation or otherwise, his costs and
expenses incurred therein or in connection therewith or any part
thereof.
ARTICLE VII
Amendments
These bylaws may be altered, amended or repealed or new
bylaws may be adopted in accordance with the corporation's
Certificate of Incorporation, the Oklahoma General Corporation
Law and these bylaws.
Exhibit 21
DEVON ENERGY CORPORATION
Subsidiaries of Registrant
The Registrant has the following significant subsidiaries:
Jurisdiction of
Name of Subsidiary Incorporation
Devon Energy Corporation (Nevada) Nevada
Devon Energy Operating Corporation Oklahoma
Devon Marketing Corporation Nevada
Devon Production Corporation Nevada
Avon Energy Corporation Delaware
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
DEVON OKLAHOMA CORPORATION
(Pursuant to Section 32 of the
Oklahoma General Corporation Act)
DEVON OKLAHOMA CORPORATION, a corporation organized and
existing under the General Corporation Act of the State of
Oklahoma (hereinafter called the "Corporation"), hereby certifies
that the following resolution was adopted by the Board of
Directors of the Corporation as required by Section 32 of the
General Corporation Act pursuant to a written consent signed by
all the directors and dated April 13, 1995:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Corporation (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Certificate of Incorporation, the
Board of Directors hereby creates a series of Preferred Stock,
par value $1.00 per share (the "Preferred Stock"), of the
Corporation and hereby states the designation and number of
shares, and fixes the relative rights, preferences and
limitations thereof as follows:
Series A Junior Participating Preferred Stock:
I. Designation and Amount
The shares of such series shall be designated as
"Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the
Series A Preferred Stock shall be 300,000. Such number of shares
may be increased or decreased by resolution of the Board of
Directors; provided, that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A
Preferred Stock.
II. Dividends and Distributions
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock,
in preference to the holders of Common Stock, par value $.10 per
share (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the first
day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00
or (b) subject to the provisions for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock on a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1.00 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue
of such shares, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall not be more than 60 days prior to the date fixed for the
payment thereof.
III. Voting Rights
The holders of shares of Series A Preferred Stock shall
have the following voting rights:
(A) Subject to the provisions for adjustment
hereinafter set forth, each share of Series A Preferred Stock
shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein, in any other
Certificate of Designation creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series A Preferred Stock shall have
no special voting rights (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
IV. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided
in Section II are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared,
on shares of Series A Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably
on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A Preferred
Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series of
classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section IV,
purchase or otherwise acquire such shares at such time and in
such manner.
V. Reacquired Shares
Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in
the Certificate of Incorporation, in any other Certificate of
Designation creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share,
subject to the provisions for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series
A Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
VII. Consolidation, Merger, etc.
In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then
in any such case each share of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount
per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
VIII. Redemption
The shares of Series A Preferred Stock shall not be
redeemable.
IX. Rank
The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Corporation's
Preferred Stock.
X. Amendment
The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter
or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together
as a single series.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Corporation by its President and
attested by its Secretary this 13th day of April, 1995.
DEVON OKLAHOMA CORPORATION
ATTEST:
By: William T. Vaughn
Marian J. Moon William T. Vaughn, Vice President
Marian J. Moon, Secretary
DESCRIPTION OF FRONT OF STOCK CERTIFICATE FOR DEVON ENERGY
CORPORATION
Top one-third of stock certificate has a graphic image of female
with globe, drilling rig, mountains, sky and ocean in background.
It also includes the following language:
"Incorporated under the laws of the State of Oklahoma"
"This certificate is transferable in Boston, Mass. and New
York, N.Y."
"Common Stock Par Value $.10"
"CUSIP 251799 10 2"
"DEVON ENERGY CORPORATION"
Middle one-third of stock certificate includes an engraved box
with language: "This certifies that"; and"Is the Owner of,"
Lower one-third of stock certificate has the following language:
"FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
DEVON ENERGY CORPORATION (hereinafter called the "Corporation"
transferable on the books of the Corporation, in person or by
duly authorized attorney, upon surrender of this Certificate
properly endorsed. The Certificate and the shares represented
hereby are issued and shall be subject to all of the provisions
of the Articles of Incorporation of the Corporation and of the
amendments thereto, to all of which the holder, by acceptance
hereof, assets. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the
Registrar.
WITNESS the facsimile seal of the Corporation and the
facsimile signatures of its duly authorized officers.
Dated COUNTERSIGNED AND REGISTERED:
J. Larry Nichols, President THE FIRST NATIONAL BANK OF BOSTON
Transfer Agent and Registrar
Marian J. Moon, Secretary By
The left and right sides of the certificate are bordered by one
and one-half inch blue engraved bands. The left band includes a
box for the insertion of a certificate number. The right band
includes a box for the insertion of the number of shares. The
right band also includes a facsimile corporate seal bearing the
words "Devon Energy Corporation Oklahoma" and "Corporate Seal."
<PAGE>
DESCRIPTION OF BACK OF STOCK CERTIFICATE OF DEVON ENERGY
CORPORATION
The following language appears on the back of the stock
certificate:
DEVON ENERGY CORPORATION
The corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Such request may be made to the corporation or the transfer
agent.
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights Agreement
between Devon Energy Corporation and The First National Bank of
Boston dated as of April 17, 1995 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of
Devon Energy Corporation. Under certain circumstances, as set
forth in the Rights Agreement, such Rights may be redeemed, may
expire, or may be evidenced by separate certificates and no
longer be evidenced by this certificate. Devon Energy Corporation
will mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge
after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued
to, or held by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof(as such terms are
defined in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may become
null and void.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ________ Custodian ____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
For value received, ___________ hereby sell, assign and
transfer unto _______________(please insert social security or
other identifying number of assignee)
_______________________________________________________________
Please print or typewrite name and address including postal zip
code of assignee
_______________________________________________________________
_______________________________________________________________
_______________________________________________________ Shares of
the stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint __________________ Attorney to
transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated, ______________________________
X__________________________
(Signature)
NOTICE:
The signature(s) to this
Assignment must correspond
with the name(s) as written
upon the face of the certificate
in every particular without
alteration or enlargement or
any change whatever. X__________________________
(Signature)
The signature(s) should be guaranteed by an "Eligible Guarantor
Institution" as defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended.
SIGNATURE(S) GUARANTEED BY:
================================================
DEVON OKLAHOMA CORPORATION
and
THE FIRST NATIONAL BANK OF BOSTON
Rights Agent
RIGHTS AGREEMENT
Dated as of April 17, 1995
================================================
<PAGE>
INDEX
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 8
Section 3. Issue of Right Certificates 8
Section 4. Form of Right Certificates 10
Section 5. Countersignature and Registration 11
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates 12
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights 13
Section 8. Cancellation and Destruction of Right
Certificates 14
Section 9. Reservation and Availability
of Preferred Shares 15
Section 10. Preferred Share Record Date 16
Section 11. Adjustment of Purchase Price,
Number of Shares or Number
of Rights 16
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares 24
Section 13. Consolidation, Merger or Certain
Other Transactions 25
Section 14. Fractional Rights and Fractional
Shares 28
Section 15. Rights of Action 30
Section 16. Agreement of Right Holders 30
<PAGE>
Section 17. Right Certificate Holder Not Deemed
a Stockholder 31
Section 18. Concerning the Rights Agent 32
Section 19. Merger or Consolidation or Change of
Name of Rights Agent 32
Section 20. Duties of Rights Agent 33
Section 21. Change of Rights Agent 35
Section 22. Issuance of New Right Certificates 36
Section 23. Redemption and Termination 37
Section 24. Notice of Certain Events 38
Section 25. Notices 39
Section 26. Supplements and Amendments 40
Section 27. Successors 41
Section 28. Determinations and Actions by the
Board of Directors, etc. 41
Section 29. Benefits of This Agreement 41
Section 30. Severability 42
Section 31. Governing Law 42
Section 32. Counterparts 42
Section 33. Descriptive Headings 42
Signatures 43
Exhibit A Form of Certificate of Designations
of Series A Junior Participating
Preferred Stock
Exhibit B Form of Right Certificate
<PAGE>
RIGHTS AGREEMENT
This Agreement, dated as of April 17, 1995 between Devon
Oklahoma Corporation, an Oklahoma corporation (the "Company"),
and THE FIRST NATIONAL BANK OF BOSTON (the "Rights Agent"),
W I T N E S S E T H :
WHEREAS, on April 13, 1995 the Board of Directors of the
Company authorized and declared a dividend of one preferred share
purchase right (hereafter referred to as a "Right") for each
share of Common Stock, $.10 par value per share, of the Company
outstanding on April 13, 1995 herein referred to as the "Record
Date," other than shares of such Common Stock held in the Com
pany's treasury on such date, and has authorized the issuance of
one Right in respect of each share of Common Stock of the Company
issued between the Record Date (whether originally issued or
issued from the Company's treasury) and the Distribution Date (as
such term is defined in Section 3 hereof), each Right represent
ing the right to purchase one one-hundredth of a Preferred Share
(as hereinafter defined) upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated.
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, shall hereafter become the Beneficial Owner of 15% or
more of the Voting Shares of the Company then outstanding, but
shall not include the Company, any Subsidiary of the Company or
any employee benefit plan of the Company or any Subsidiary of the
Company, or any Person or entity organized, appointed or
established by the Company or a Subsidiary of the Company for or
pursuant to the terms of any employee benefit plan; provided, a
Person who or which does no more than (i) become an Affiliate or
Associate of a Person who or which (together with all Affiliates
or Associates) is now a Beneficial Owner of 15% or more of the
Voting Shares now outstanding, and/or (ii) become, by operation
of clause (ii) or clause (iii) of Section 1(c), the Beneficial
Owner of shares beneficially owned by a Person who or which
(together with all Affiliates or Associates) is now a Beneficial
Owner of 15% or more of the Voting Shares now outstanding, is not
an Acquiring Person. Further, no Person shall become an
Acquiring Person solely as the result of a reduction in the
number of Voting Shares outstanding due to an acquisition of
Voting Shares by the Company which increases the proportionate
number of such Voting Shares Beneficially Owned by such Person to
15% or more unless and until that Person shall purchase or
otherwise become (as a result of actions by such Person or its
Affiliates or Associates) the Beneficial Owner of any additional
Voting Shares of the Company.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the
date hereof.
(c) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "Beneficially Own," any securities:
(i) which such Person or any of
such Person's Affiliates or Associates
Beneficially Owns pursuant to Rule 13d-3 or
13d-5 under the Exchange Act, directly or
indirectly;
(ii) which such Person or any of
such Person's Affiliates or Associates has
(A) the right to acquire (whether such
right is exercisable immediately or only
after the passage of time) pursuant to any
agreement, arrangement or understanding
(other than customary agreements with and
between underwriters and selling group
members with respect to a bona fide public
offering of securities), or upon the
exercise of conversion rights, exchange
rights, rights (other than these Rights),
warrants or options, or otherwise;
provided, however, that a Person shall not
be deemed the Beneficial Owner of, or to
Beneficially Own, securities tendered
pursuant to a tender or exchange offer made
by or on behalf of such Person or any of
such Person's Affiliates or Associates
until such tendered securities are accepted
for purchase or exchange; or (B) the right
to vote pursuant to any agreement,
arrangement or understanding; provided,
however, that a Person shall not be deemed
the Beneficial Owner of, or to Beneficially
Own, any security if the agreement,
arrangement or understanding to vote such
security (1) arises solely from a revocable
proxy or consent given to such Person in
response to a public proxy solicitation
made pursuant to, and in accordance with,
the applicable rules and regulations of the
Exchange Act and (2) is not also then
reportable on Schedule 13D under the
Exchange Act or any comparable or
successor report; or
(iii) which are Beneficially
Owned, directly or indirectly, by any other
Person with which such Person or any of
such Person's Affiliates or Associates has
any agreement, arrangement or understanding
(other than customary agreements with and
between underwriters and selling group
members with respect to a bona fide public
offering of securities) for the purpose of
acquiring, holding, voting (except to the
extent contemplated by the proviso to
Section l(c)(ii)(B)) or disposing of any
securities of the Company.
(d) "Book Value", when used with reference to Common
Shares issued by any Person, shall mean the amount of equity of
such Person applicable to each Common Share, determined (i) in
accordance with generally accepted accounting principles in
effect on the date as of which such Book Value is to be
determined, (ii) using all the consolidated assets and all the
consolidated liabilities of such Person on the date as of which
such Book Value is to be determined, except that no value shall
be included in such assets for goodwill arising from consummation
of a business combination, and (iii) after giving effect to (A)
the exercise of all rights, options and warrants to purchase such
Common Shares (other than the Rights), and the conversion of all
securities convertible into such Common Shares, at an exercise or
conversion price, per Common Share, which is less than such Book
Value before giving effect to such exercise or conversion
(whether or not exercisability or convertibility is conditioned
upon occurrence of a future event), (B) all dividends and other
distributions on the capital stock of such Person declared prior
to the date as of which such Book Value is to be determined and
to be paid or made after such date, and (C) any other agreement,
arrangement or understanding (written or oral), or transaction or
other action prior to the date as of which such Book Value is to
be determined which would have the effect of thereafter reducing
such Book Value.
(e) "Business Combination" shall have the meaning
set forth in Section 13(a) hereof.
(f) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which national banking associations
in the States of Oklahoma or Massachusetts are authorized or obli-
gated by law or executive order to close.
(g) "Close of Business" on any given date shall mean
5:00 P.M., Boston, Massachusetts time, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 P.M., Boston, Massachusetts time, on the next succeeding
Business Day.
(h) "Common Shares", when used with reference to the
Company prior to a Business Combination, shall mean the shares of
Common Stock of the Company or any other shares of capital stock
of the Company into which the Common Stock shall be reclassified
or changed. "Common Shares", when used with reference to any
Person, other than the Company prior to a Business Combination,
shall mean shares of capital stock of such Person (if such Person
is a corporation) of any class or series, or units of equity
interests in such Person (if such Person is not a corporation) of
any class or series, the terms of which do not limit (as a
maximum amount and not merely in proportional terms) the amount
of dividends or income payable or distributable on such class or
series or the amount of assets distributable on such class or
series upon any voluntary or involuntary liquidation, dissolution
or winding up of such Person and do not provide that such class
or series is subject to redemption at the option of such Person,
or any shares of capital stock or units of equity interests into
which the foregoing shall be reclassified or changed; provided,
however, that, if at any time there shall be more than one such
class or series of capital stock or equity interests of such
Person, "Common Shares" of such Person shall include all such
classes and series substantially in the proportion of the total
amount of equity such shares or other units of each such class or
series outstanding at such time represent.
(i) "Common Stock" shall mean the Common Stock, $.10
par value, of the Company, except that "Common Stock" when used
with reference to any Person other than the Company shall mean
the capital stock of such Person with the greatest voting power,
or the equity securities or other equity interest having power to
control or direct the management, of such Person; provided, if
such other Person is a Subsidiary, then "Common Stock" shall mean
the capital stock of the Person which ultimately controls such
Person which is a Subsidiary with the greatest voting power, or
the equity securities or other equity interest having power to
control or direct the management of such ultimately controlling
Person.
(j) "Continuing Director" shall mean any member of
the Board of Directors of the Company, while such person is a
member of the Board, who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person or a representative
or nominee of an Acquiring Person or of any such Affiliate or
Associate, and who was a member of the Board prior to the Stock
Acquisition Date, and any successor of a Continuing Director,
while such successor is a member of the Board, who is not an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person or a representative or nominee of an Acquiring Person or
of any such Affiliate or Associate and is recommended or elected
to succeed the Continuing Director by a majority of the Continu-
ing Directors.
(k) "Distribution Date" shall have the meaning
defined in Section 3 hereof.
(l) "Final Expiration Date" shall have the meaning
set forth in Section 7 hereof.
(m) "Major Part", when used with reference to the
assets of the Company and its Subsidiaries as of any date, shall
mean assets (i) having a fair market value aggregating 50% or
more of the total fair market value of all the assets of the
Company and its Subsidiaries (taken as a whole) as of the date in
question, (ii) accounting for 50% or more of the total value (net
of depreciation and amortization) of all the assets of the
Company and its Subsidiaries (taken as a whole) as would be shown
on a consolidated or combined balance sheet of the Company and
its Subsidiaries as of the date in question, prepared in
accordance with generally accepted accounting principles then in
effect, or (iii) accounting for 50% or more of the total amount
of earnings, before interest, taxes, depreciation and
amortization, or revenues of the Company and its Subsidiaries
(taken as a whole) as would be shown on, or derived from, a
consolidated or combined statement of income of the Company and
its Subsidiaries for the period of 12 months ending on the last
day of the Company's monthly accounting period next preceding the
date in question, prepared in accordance with generally accepted
accounting principles then in effect.
(n) "Person" shall mean any individual, firm,
partnership, association, group (as such term is defined in
Section 13(d)(3) of the Exchange Act as in effect on the date of
this Agreement), corporation, trust, business trust or other
entity and shall include any successor (by merger or otherwise)
of such entity.
(o) "Preferred Shares" shall mean shares of Series A
Junior Participating Preferred Stock, par value $1.00 per share,
of the Company having the rights and preferences set forth in the
form of Certificate of Designations attached to this Agreement as
Exhibit A.
(p) "Principal Party" shall mean the Surviving
Person in a Business Combination; provided, however, that, if
such Surviving Person is a direct or indirect Subsidiary of any
other Person, "Principal Party" shall mean the Person which is
the ultimate parent of such Surviving Person and which is not
itself a Subsidiary of another Person. In the event ultimate
control of such Surviving Person is shared by two or more
Persons, "Principal Party" shall mean that Person that is
immediately controlled by such two or more Persons.
(q) "Purchase Price" shall have the meaning defined
in Section 4 hereof.
(r) "Redemption Date" shall have the meaning set
forth in Section 7 hereof.
(s) "Registered Common Shares" shall mean Common
Shares which are, as of the date of consummation of a Business
Combination, and have continuously been for the 12 months
immediately preceding such date, registered under Section 12 of
the Exchange Act.
(t) "Stock Acquisition Date" shall mean the first
date of public announcement (which, for purposes of this defini-
tion, shall include, without limitation, a report filed pursuant
to Section 13(d) under the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such,
whether or not the term "Acquiring Person" is used in such
announcement.
(u) "Subsidiary" shall mean any corporation or other
entity of which (1) securities or other ownership interests
having ordinary voting power, in the absence of contingencies, to
elect a majority of the board of directors or other persons
performing similar functions, or (2) a majority of the equity
interests, are at the time directly or indirectly owned by
another corporation or other entity which is not a natural
person.
(v) "Surviving Person" shall mean (1) the Person
which is the continuing or surviving Person in a consolidation or
merger specified in Section 13(a)(i) or 13(a)(ii) or (2) the
Person to which the Major Part of the assets of the Company and
its Subsidiaries is sold, leased, exchanged or otherwise
transferred or disposed of in a transaction specified in Section
13(a)(iii); provided, however, that if the Major Part of the
assets of the Company and its Subsidiaries is sold, leased,
exchanged or otherwise transferred or disposed of in one or more
related transactions specified in Section 13(a)(iii) to more than
one Person, the "Surviving Person" in such case shall mean the
Person that acquired assets of the Company and/or its
Subsidiaries with the greatest fair market value in such
transaction or transactions.
(w) "Transfer" shall mean to sell, exchange, lease,
pledge, mortgage, hypothecate, grant a security interest or
otherwise directly or indirectly transfer, voluntarily or
involuntarily, whether by grant or operation of law, and includ-
ing, without limitation of the foregoing, to exchange securities
for other securities, or for cash or other property, by reason of
any merger, consolidation or other corporate reorganization.
(x) "Voting Shares" shall mean (i) for purposes of
determining the number of outstanding Voting Shares of the
Company, the Common Shares of the Company and any other shares of
capital stock of the Company entitled to vote generally in the
election of directors; and (ii) for purposes of determining the
number or percentage of Voting Shares Beneficially Owned by any
Person, all of the following shares Beneficially Owned by such
Person: (x) the number of votes represented by the Common Shares
of the Company and (y) the number of votes represented by the
shares of any other capital stock of the Company entitled to vote
generally in the election of directors.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company
and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the holders
of the Common Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it
may deem necessary or desirable and determine the respective
duties of the Rights Agent and any Co-Rights Agent.
Section 3. Issue of Right Certificates.
(a) One Right shall be associated with each share of
Common Stock outstanding on the Record Date, each additional
share of Common Stock that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date and each additional
share of Common Stock issued to anyone other than an Acquiring
Person, or an Affiliate or Associate thereof, after the
Distribution Date but prior to the earlier of the Redemption Date
or the Final Expiration Date, subject to the adjustments
enumerated in Section 11.
(b) Until the earlier of (i) the close of business
on the tenth day (or such later date as is determined by
unanimous vote of the Continuing Directors and publicly
announced) after the Stock Acquisition Date (provided, however
that if prior to the date which would otherwise be the
Distribution Date, as defined below, the Acquiring Person whose
becoming such shall have caused the Stock Acquisition Date to
occur, shall cease to be an Acquiring Person as indicated in a
public announcement or public filing by such Person, and upon the
unanimous vote of the Continuing Directors, then for purposes of
this Section 3(a), the Stock Acquisition Date shall be deemed not
to have occurred), or (ii) the close of business on the tenth day
after the date that a tender or exchange offer by any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any person or entity organized, appointed or es-
tablished by the Company for or pursuant to the terms of any such
plan) is first published or sent or given within the meaning of
Rule 14e-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person would be
the Beneficial Owner of 15% or more of the Voting Shares then
outstanding (the earlier of (i) and (ii) being herein referred to
as the "Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraph (c) of this Section 3) by
the certificates for the Common Stock registered in the names of
the holders of the Common Stock (which certificates for Common
Stock shall be deemed also to be certificates for Rights) and not
by separate certificates, (y) the Rights will be transferable
only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company), and (z) the
surrender for transfer of the certificates for Common Stock shall
also constitute the transfer of the Rights associated with the
Common Stock. The Company shall give the Rights Agent prior
written notice of the Distribution Date and the circumstances
giving rise thereto. As soon as practicable after the Distribu
tion Date, the Rights Agent will send by first-class, insured,
postage prepaid mail, to each such record holder of the Common
Stock as of the close of business on the Distribution Date, at
the address of such holder shown on the records of the Company,
one or more right certificates, in substantially the form of Ex-
hibit B hereto (the "Right Certificates"), evidencing one Right
for each share of Common Stock so held, subject to adjustment as
provided herein. As of and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
Notwithstanding the foregoing, if any tender or exchange offer
referred to in clause (ii) of this Section 3(b) expires, is
cancelled, terminated or otherwise withdrawn prior to the date
which would otherwise be the Distribution Date, such offer shall
be deemed, for purposes of this Section 3(b) never to have been
made.
(c) Certificates for the Common Stock issued after
the Record Date but prior to the earlier of the Distribution
Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them
the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement between Devon Oklahoma Corporation
and The First National Bank of Boston dated as of
April 17, 1995 (the "Rights Agreement"), the terms
of which are hereby incorporated herein by
reference and a copy of which is on file at the
principal executive offices of Devon Oklahoma
Corporation. Under certain circumstances, as set
forth in the Rights Agreement, such Rights may be
redeemed, may expire, or may be evidenced by
separate certificates and no longer be evidenced by
this certificate. Devon Oklahoma Corporation will
mail to the holder of this certificate a copy of
the Rights Agreement as in effect on the date of
mailing, without charge, after receipt of a written
request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf
of such Person or by any subsequent holder, may
become null and void.
Notwithstanding this paragraph (c), the omission of a legend
shall not affect the enforceability of this Rights Agreement or
the rights of any holder of Rights. The presence of a legend
after the Distribution Date shall not imply that any Rights are
associated with the certificate other than that represented by
the Rights Certificate distributed with respect thereof. In the
event that the Company purchases or acquires any Common Stock
after the Record Date but prior to the Distribution Date, any
Rights associated with such Common Stock shall be deemed
cancelled and retired so that the Company shall not be entitled
to exercise any Rights associated with the shares of Common Stock
which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preferred
Shares and of assignment to be printed on the reverse thereof)
when, as and if issued, shall be substantially the same as
Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law, rule or regulation or
with any rule or regulation of any stock exchange on which the
Rights may from time to time be listed. Subject to the
provisions of Section 22 hereof, the Right Certificates, whenever
distributed, shall be dated as of the Record Date (or in the case
of Rights issued with respect to Common Stock issued by the
Company after the Record Date, as of the date of issuance of such
Common Stock), shall note the date of issuance on their face and
shall entitle the holders thereof to purchase such number of one
one-hundredths of a Preferred Share as shall be set forth therein
at the price per one one-hundredth of a Preferred Share set forth
thereon (the "Purchase Price"), but the amount and type of secur
ities purchasable upon the exercise of each Right and the Pur
chase Price thereof shall be subject to adjustment as provided
herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its President
or any Vice President, either manually or by facsimile signature,
and shall be attested by the Secretary or an Assistant Secretary
of the Company, either manually or by facsimile signature. The
Right Certificates shall be countersigned (manually or by
facsimile signature in a manner satisfactory to the Company) by
the Rights Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company whose manual
or facsimile signature is affixed to the Right Certificates shall
cease to be such officer of the Company before countersignature
by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by
the Rights Agent, issued and delivered with the same force and
effect as though the person who signed such Right Certificates
had not ceased to be such officer of the Company. Any Right
Certificate may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign
such Right Certificate, although at the date of the execution of
this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at one of its offices, books
for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates
and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates.
(a) Subject to the provisions of Sections 11(a) and
14 hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of business on
the Redemption Date or the Final Expiration Date (as such terms
are defined in Section 7(a) hereof), any Right Certificate or
Right Certificates may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of one
one-hundredths of a Preferred Share as the Right Certificate or
Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate shall make such request
in writing delivered to the Rights Agent, and shall surrender the
Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the principal office of the Rights
Agent designated for such purpose. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Right Certificate
until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse
side of such Right Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request. Thereupon the Rights
Agent, subject to Sections 11(a) and 14 hereof, shall countersign
and deliver to the person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right
Certificates.
(b) Upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for counter
signature and delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 11(a), the registered holder
of any Right Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein) in whole or in part
at any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent designated for such purpose,
together with payment of the Purchase Price for each one one-
hundredth of a Preferred Share as to which the Rights are exer
cised, at or prior to the close of business on the earlier of (i)
April 16, 2005 (the "Final Expiration Date"), or (ii) the date on
which the Rights are redeemed as provided in Section 23 (the
"Redemption Date").
(b) The Purchase Price for each one one-hundredth of
a Preferred Share pursuant to the exercise of a Right shall
initially be $75, shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof, or amendment as
provided in Section 26, and shall be payable in lawful money of
the United States of America in accordance with paragraph (c)
below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment of the Purchase
Price for shares to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of the
Rights pursuant hereto in cash, or by certified or cashier's
check or money order payable to the order of the Company, the
Rights Agent shall thereupon promptly (i) (A) requisition from
any transfer agent of the Preferred Shares (or make available, if
the Rights Agent is the transfer agent for such shares)
certificates for the number of Preferred Shares to be purchased
and the Company hereby irrevocably authorizes and directs such
transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of
Preferred Shares issuable upon the exercise of the Rights
hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such number of
one one-hundredths of a Preferred Share as are to be purchased
(in which case certificates for the Preferred Shares represented
by such receipts shall be deposited by the transfer agent with
the depositary agent) and the Company hereby directs the
depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash to
be paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) after receipt of such certificates
or depositary receipts, cause the same to be delivered to the
registered holder, or upon the order of the registered holder of
such Right Certificate, registered in such name or names as may
be designated by such holder and (iv) when appropriate, after re
ceipt deliver such cash in lieu of fractional shares to or upon
the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be countersigned by the
Rights Agent and delivered to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
properly completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the
Right Certificate surrendered for such exercise and (ii) provided
such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof
as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be de-
livered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates
to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Preferred
Shares.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued Preferred Shares or its authorized and issued Preferred
Shares held in its treasury, the number of Preferred Shares that
will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all
Preferred Shares delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares.
(c) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any
Preferred Shares upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be
payable in respect of any transfer involved in the transfer or
delivery of Right Certificates or the issuance or delivery of
certificates or depositary receipts for the Preferred Shares in a
name other than that of the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or to
issue or deliver any certificates or depositary receipts for
Preferred Shares upon the exercise of any Rights until any such
tax shall have been paid (any such tax being payable by the
holder of such Right Certificate at the time of surrender) or
until it has been established to the Company's satisfaction that
no such tax is due.
Section 10. Preferred Share Record Date. Each Person
(other than the Company) in whose name any certificate for
Preferred Shares is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the
Preferred Shares represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evi-
dencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment
is a date upon which the Preferred Shares transfer books of the
Company are closed, such Person shall be deemed to have become
the record holder of such shares on, and such certificate shall
be dated, the next succeeding Business Day on which the Preferred
Shares transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a holder of
Preferred Shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any rights af
forded to stockholders of the Company and shall not be entitled
to receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights. The Purchase Price, the number and
kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company
shall at any time after the date of this
Agreement (A) declare a dividend on the
Preferred Shares payable in Preferred
Shares, (B) subdivide the outstanding
Preferred Shares, (C) combine the
outstanding Preferred Shares into a smaller
number of Preferred Shares or (D) issue any
shares of its capital stock in a
reclassification of the Preferred Shares
(including any such reclassification in
connection with a consolidation or merger
in which the Company is the continuing
corporation), except as otherwise provided
in this Section 11(a), the Purchase Price
in effect at the time of the record date
for such dividend or of the effective date
of such subdivision, combination or
reclassification, and the number and kind
of shares of capital stock issuable on such
date, shall be proportionately adjusted so
that the holder of any Right exercised
after such time shall be entitled to
receive, upon payment of the Purchase Price
then in effect, the aggregate number and
kind of shares of capital stock which, if
such Right had been exercised immediately
prior to such date and at a time when the
Preferred Shares transfer books of the
Company were open, he would have owned upon
such exercise and been entitled to receive
by virtue of such dividend, subdivision,
combination or reclassification; provided,
however, that in no event shall the
consideration to be paid upon the exercise
of one Right be less than the aggregate par
value of the shares of capital stock of the
Company issuable upon exercise of one
Right.
(ii) Upon a Person becoming an
Acquiring Person, each holder of a Right,
except as provided below, shall thereafter
have a right to receive, upon exercise
thereof at a price equal to the then
current Purchase Price multiplied by the
number of one one-hundredths of a Preferred
Share for which a Right is then
exercisable, in accordance with the terms
of this Agreement and in lieu of Preferred
Shares, such number of Common Shares of the
Company as shall equal the result obtained
by (A) multiplying the then current
Purchase Price by the then number of one
one-hundredths of a Preferred Share for
which a Right is then exercisable and divid
ing that product by (B) 50% of the then
current per share market price of the
Company's Common Shares (determined
pursuant to Section 11(d)) on the date such
Person became an Acquiring Person.
(iii) Notwithstanding
anything in this Rights Agreement to the
contrary, any Rights that are at any time
Beneficially Owned by (a) an Acquiring
Person (or any Associate or Affiliate of
such Acquiring Person) or (b) a transferee
of an Acquiring Person or of any Associate
or Affiliate of such Acquiring Person who
receives Rights pursuant to either (A) a
transfer (whether or not for consideration)
from the Acquiring Person to holders of
equity interests in such Acquiring Person
or to any Person with whom such Acquiring
Person has any continuing agreement,
arrangement or understanding regarding the
transferred Rights or (B) a transfer which
the Board of Directors of the Company
determines has a primary purpose or effect
of avoidance of Section 11(a) hereof shall
be null and void and any such holder shall
have no right to exercise such Rights under
any provision of this Agreement. No Right
Certificate shall be intentionally issued
pursuant to Section 3 that represents
Rights Beneficially Owned by an Acquiring
Person or any Associate or Affiliate
thereof and no Right Certificate shall be
intentionally issued at any time upon the
transfer of any Rights to an Acquiring
Person or any Associate or Affiliate
thereof or to any nominee of such Acquiring
Person, Associate or Affiliate. Any Right
Certificate delivered to the Rights Agent
for transfer to such an Acquiring Person,
Associate or Affiliate shall be cancelled.
(iv) In the event that there
shall not be sufficient Common Shares
issued but not outstanding or authorized
but unissued to permit the exercise in full
of the Rights in accordance with the
foregoing subparagraph (ii), the Company
shall take all such action as may be
necessary to authorize additional Common
Shares for issuance upon exercise of the
Rights. In the event the Company shall,
after good faith effort, be unable to take
all such action as may be necessary to
authorize such additional Common Shares,
the Company shall substitute, for each
Common Share that would otherwise be
issuable upon exercise of a Right, a number
of Preferred Shares or fraction thereof
such that the current per share market
price of one Preferred Share multiplied by
such number or fraction is equal to the
current per share market price of one
Common Share as of the date of issuance of
such Preferred Shares or fraction thereof.
(b) In the event the Company shall fix a record date
for the issuance of rights, options or warrants to all holders of
Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent
preferred shares")) or securities convertible into Preferred
Shares at a price per Preferred Share (or having a conversion
price per share, if a security convertible into Preferred Shares
or equivalent preferred shares) less than the current market
price per share of Preferred Shares (as defined in Section 11(d))
on such record date, the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such date by a fraction, the
numerator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of Preferred
Shares which the aggregate offering price of the total number of
Preferred Shares and/or equivalent preferred shares to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current
market price and the denominator of which shall be the number of
Preferred Shares outstanding on such record date plus the number
of additional Preferred Shares and/or equivalent preferred shares
to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convert-
ible); provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of
the Company issuable upon exercise of one Right. In the event
such subscription price may be paid in a consideration part or
all of which shall be in a form other than cash, the value of
such consideration shall be as determined in good faith by the
Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent. Preferred
Shares owned by or held for the account of the Company shall not
be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights or warrants are
not so issued, the Purchase Price shall be adjusted again to be
the Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In the event the Company shall fix a record date
for the making of a distribution to all holders of the Preferred
Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or assets
(other than a regular periodic cash dividend or a dividend
payable in Preferred Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b)), the Purchase
Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the then current per share market price (as defined in Section
11(d)) of the Preferred Shares on such record date, less the fair
market value (as determined in good faith by the Board of Direc-
tors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the
assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one Preferred
Share and the denominator of which shall be such current per
share market price of the Preferred Shares; provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of
one Right. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall be adjusted
again to be the Purchase Price which would have then been in
effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder,
the "current per share market price" of any security (a "Secur
ity" for the purpose of this Section 11(d)) on any date shall be
deemed to be the average of the daily closing prices per share of
such Security for the 20 consecutive Trading Days (as hereinafter
defined) immediately prior to such date; provided, however, that
in the event that the current per share market price of the
Security is determined during a period following the announcement
by the issuer of such Security of (A) a dividend or distribution
on such Security payable in shares of such Security or securities
convertible into such shares or (B) any subdivision, combination
or reclassification of such Security and prior to the expiration
of 20 Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, com-
bination or reclassification, then, and in each such case, the
current per share market price shall be appropriately adjusted to
reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the American Stock Exchange or, if the
Security is not listed or admitted to trading on the American
Stock Exchange, as reported in the principal consolidated trans-
action reporting system with respect to securities listed on the
principal national securities exchange on which the Security is
listed or admitted to trading or, if the Security is not listed
or admitted to trading on any national securities exchange, the
average of the high bid and low asked prices in the over-the-
counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use, or, if on any such date the
Security is not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional
market maker making a market in the Security selected by the
Board of Directors of the Company. If the Preferred Shares are
not publicly traded, the current per share market price of the
Preferred Shares shall be deemed to be the current per share
market price of the Common Shares (appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof) multiplied by 100. If neither
the Preferred Shares nor the Common Shares are publicly traded,
the current per share market price shall be deemed the fair value
thereof on such date as determined in good faith by the Board of
Directors of the Company. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which
the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a Busi-
ness Day.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest
one-millionth of a Preferred Share or one ten-thousandth of any
other share or security as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of (i)
three years from the date of the transaction which mandates such
adjustment or (ii) the expiration of the Rights.
(f) In the event that at any time, as a result of an
adjustment made pursuant to Section 11(a) or Section 13, the
holder of any Right shall be entitled to receive upon exercise of
such Right any shares of capital stock of the Company other than
Preferred Shares, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Shares contained in
Sections 11(a) through (c), inclusive, and the provisions of
Sections 7, 9, 10 and 13 with respect to the Preferred Shares
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of shares of one one-hundredths of a Preferred
Share purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Section 11(b) and (c), each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a Preferred Share (calculated to the
nearest one one-millionth of a Preferred Share) obtained by (i)
multiplying (x) the number of one one-hundredths of a Preferred
Share covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of one
one-hundredths of a Preferred Share purchasable upon the exercise
of a Right. Each of the Rights outstanding after such adjustment
of the number of Rights shall be exercisable for the number of
one one-hundredths of a Preferred Share for which such Right was
exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest one
ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of
its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day there
after, but, if the Right Certificates have been issued, shall be
at least 10 days later than the date of the public announcement.
If Right Certificates have been issued upon each adjustment of
the number of Rights pursuant to this Section 11(i) the Company
shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14, the additional
Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior
to the date of adjustment, and upon surrender thereof, if re
quired by the Company, new Right Certificates evidencing all the
Rights to which such holders shall be entitled after such adjust
ment. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and
may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-hundredths of a Preferred
Share issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to
express the Purchase Price and the number of one one-hundredths
of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-hundredth of
the then par value, if any, of the Preferred Shares issuable upon
exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid
and nonassessable Preferred Shares at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made effec-
tive as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event the issuing to
the holder of any Right exercised after such record date of the
Preferred Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
Preferred Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjust
ments expressly required by this Section 11, as and to the extent
that the Board of Directors of the Company shall determine in its
sole discretion to be advisable in order that any consolidation
or subdivision of the Preferred Shares, issuance wholly for cash
of any Preferred Shares at less than the current market price,
issuance wholly for cash of Preferred Shares or securities which
by their terms are convertible into or exchangeable for Preferred
Shares, dividends on Preferred Shares payable in Preferred Shares
or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to
the holders of its Preferred Shares, shall not be taxable to such
stockholders.
(n) In the event that at any time after the date of
this Agreement and prior to the Distribution Date, the Company
shall (i) declare or pay any dividend on the Common Stock payable
in Common Stock or (ii) effect a subdivision, combination or
consolidation of the shares of Common Stock (by reclassification
or otherwise than by payment of dividends in Common Stock) into a
greater or lesser number of shares of Common Stock, then in any
such case (A) the number of one one-hundredths of a Preferred
Share purchasable after such event upon proper exercise of each
Right shall be determined by multiplying the number of one one-
hundredths of a Preferred Share so purchasable immediately prior
to such event by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately before such
event and the denominator of which is the number of shares of
Common Stock outstanding immediately after such event, and (B)
each share of Common Stock outstanding immediately after such
event shall have issued with respect to it that number of Rights
which each share of Common Stock outstanding immediately prior to
such event had issued with respect to it. The adjustments
provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdivi-
sion, combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Sections 11 and 13, the Company shall (a) promptly prepare a
certificate setting forth such adjustment, and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Common
Stock or the Preferred Shares a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Right in accor-
dance with Section 25. The Rights Agent shall be fully protected
in relying on any adjustment therein contained. Any adjustment to
be made pursuant to Sections 11 and 13 of this Agreement shall be
effective as of the date of the event giving rise to such
adjustment.
Section 13. Consolidation, Merger or Certain Other
Transactions.
(a) In the event that, following a Stock Acquisition
Date, directly or indirectly, any transactions specified in the
following clause (i), (ii) or (iii) of this Section 13 (each such
transaction being a "Business Combination") shall be consummated:
(i) the Company shall
consolidate with, or merge with and into,
any Acquiring Person or any Affiliate or
Associate of an Acquiring Person;
(ii) any Acquiring Person or any
Affiliate or Associate of an Acquiring
Person shall merge with and into the
Company and, in connection with such
merger, all or part of the Common Shares
shall be changed into or exchanged for
capital stock or other securities of the
Company or of any Acquiring Person or
Affiliate or Associate of an Acquiring
Person or cash or any other property; or
(iii) the Company shall sell,
lease, exchange or otherwise transfer or
dispose of (or one or more of its
Subsidiaries shall sell, lease, exchange or
otherwise transfer or dispose of), in one
or more transactions, the Major Part of the
assets of the Company and its Subsidiaries
(taken as a whole) to any Acquiring Person
or any Affiliate or Associate of an
Acquiring Person, then, in each such case,
proper provision shall be made so that each
holder of a Right, except as provided
herein, shall thereafter have the right to
receive, upon the exercise thereof for the
Purchase Price in accordance with the terms
of this Rights Agreement, the securities
specified below (or, at such holder's
option, the securities specified in Section
7(a)):
(A) If the Principal
Party in such Business Combination has
Registered Common Shares outstanding,
each Right shall thereafter represent
the right to receive, upon the exercise
thereof for the Purchase Price in
accordance with the terms of this Rights
Agreement, such number of Registered
Common Shares of such Principal Party,
free and clear of all liens,
encumbrances or other adverse claims, as
shall have an aggregate Market Value
equal to the result obtained by
multiplying the Purchase Price by two;
(B) If the Principal
Party involved in such Business
Combination does not have Registered
Common Shares outstanding, each Right
shall thereafter represent the right to
receive, upon the exercise thereof for
the Purchase Price, in accordance with
the terms of this Rights Agreement, at
the election of the holder of such Right
at the time of the exercise thereof, any
of:
(1) such number
of Common Shares of the Surviving
Person in such Business Combination
as shall have an aggregate Book Value
immediately after giving effect to
such Business Combination equal to
the result obtained by multiplying
the Purchase Price by two;
(2) such number
of Common Shares of the Principal
Party in such Business Combination
(if the Principal Party is not also
the Surviving Person in such Business
Combination) as shall have an
aggregate Book Value immediately
after giving effect to such Business
Combination equal to the result
obtained by multiplying the Purchase
Price by two; or
(3) if the
Principal Party in such Business
Combination is an Affiliate of one or
more Persons which has Registered
Common Shares outstanding, such
number of Registered Common Shares of
whichever of such Affiliates of the
Principal Party has Registered Common
Shares with the greatest aggregate
Market Value on the date of
consummation of such Business
Combination as shall have an
aggregate Market Value on the date of
such Business Combination equal to
the result obtained by multiplying
the Purchase Price by two.
(b) The Company shall not consummate any Business
Combination unless each issuer of Common Shares for which Rights
may be exercised, as set forth in this Section 13, shall have
sufficient authorized Common Shares that have not been issued or
reserved for issuance (and which shall, when issued upon exercise
thereof in accordance with this Rights Agreement, be validly
issued, fully paid and nonassessable and free of preemptive
rights, rights of first refusal or any other restrictions or
limitations on the transfer or ownership thereof) to permit the
exercise in full of the Rights in accordance with this Section 13
and unless prior thereto:
(i) a registration statement
under the Securities Act of 1933 (the
"Securities Act") on an appropriate form,
with respect to the Rights and the Common
Shares of such issuer purchasable upon
exercise of the Rights, shall be effective
under the Securities Act; and
(ii) the Company and each such
issuer shall have:
(A) executed and
delivered to the Rights Agent a
supplemental agreement providing for the
assumption by such issuer of the
obligations set forth in this Section 13
(including the obligation of such issuer
to issue Common Shares upon the exercise
of Rights in accordance with the terms
set forth in Sections 13(a) and 13(c))
and further providing that such issuer,
at its own expense, will use its best
efforts to:
(1) cause a
registration statement under the
Securities Act on an appropriate
form, with respect to the Rights and
the Common Shares of such issuer
purchasable upon exercise of the
Rights, to remain effective (with a
prospectus at all times meeting the
requirements of the Securities Act)
until the Expiration Date;
(2) qualify or
register the Rights and the Common
Shares of such issuer purchasable
upon exercise of the Rights under the
blue sky or securities laws of such
jurisdictions as may be necessary or
appropriate; and
(3) List the
Rights and the Common Shares of such
issuer purchasable upon exercise of
the Rights on each national
securities exchange on which the
Common Shares were listed prior to
the consummation of the Business
Combination or, if the Common Shares
were not listed on a national
securities exchange prior to the
consummation of the Business
Combination, on a national securities
exchange;
(B) furnished to the
Rights Agent a written opinion of
independent counsel stating that such
supplemental agreement is a valid,
binding and enforceable agreement of
such issuer; and
(C) filed with the
Rights Agent a certificate of a
nationally recognized firm of
independent accountants setting forth
the number of Common Shares of such
issuer which may be purchased upon the
exercise of each Right after the
consummation of such Business
Combination.
(c) After consummation of any Business Combination
and subject to the provisions of Section 13(b), (i) each issuer
of Common Shares for which Rights may be exercised as set forth
in this Section 13 shall be liable for, and shall assume, by
virtue of such Business Combination, all the obligations and
duties of the Company pursuant to this Rights Agreement, (ii) the
term "Company" shall thereafter be deemed to refer to such
issuer, (iii) each such issuer shall take such steps in
connection with such consummation as may be necessary to assure
that the provisions hereof (including the provisions of Section
7(a) and 13 shall thereafter be applicable, as nearly as
reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights, and (iv) the number
of Common Shares of each such issuer thereafter receivable upon
exercise of any Right shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable
to the provisions of this Agreement and the provisions hereof
with respect to the Preferred Shares shall apply, as nearly as
reasonably may be, on like terms to any such Common Shares.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Rights with
regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this
Section 14(a), the current market value of a whole Right shall be
the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the
last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported on the principal
consolidated transaction reporting system with respect to secur-
ities listed or admitted to trading on the American Stock Ex-
change or, if the Rights are not listed or admitted to trading on
the American Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the
Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price, or, if not so quoted,
the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on
such date as determined in good faith by the Board of Directors
of the Company shall be used.
(b) The Company shall not be required to issue
fractions of Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share)
upon exercise of the Rights or to distribute certificates which
evidence fractional Preferred Shares (other than fractions which
are integral multiples of one one-hundredth of a Preferred
Share). Fractions of Preferred Shares in integral multiples of
one one-hundredth of a Preferred Share may, at the election of
the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that
are not integral multiples of one one-hundredth of a Preferred
Share, the Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one Preferred Share. For purposes of this
Section 14(b), the current market value of a Preferred Share
shall be the closing price of a Preferred Share (as determined
pursuant to the first sentence of Section 11(d) hereof) for the
Trading Day immediately prior to the date of such exercise.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of Common
Stock in respect to which Rights have been issued); and any
registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent of
the Rights Agent or of the holder of any other Right Certificate
(or, prior to the Distribution Date, of the Common Stock), may,
in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and will be entitled to specific
performance of the obligations hereunder, and injunctive relief
against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of
a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) Prior to the Distribution Date, the Rights will
be transferable only in connection with the transfer of Common
Stock;
(b) After the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office of the Rights
Agent designated for such purpose, duly endorsed or accompanied
by a proper instrument of transfer;
(c) The Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, prior
to the Distribution Date, the associated Common Stock certifi-
cate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of owner
ship or writing on the Right Certificates or the associated Com-
mon Stock Certificate made by anyone other than the Company or
the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to
the contrary; and
(d) Notwithstanding anything in this Agreement to
the contrary, neither the Company nor the Rights Agent shall have
any liability to any holder of a Right or other Person as a re-
sult of its inability to perform any of its obligations under
this Agreement by reason of any preliminary or permanent injunc-
tion or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the Preferred Shares or any other securi-
ties of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold con-
sent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in Sec-
tion 24), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right
Certificate shall have been exercised in accordance with the pro-
visions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay promptly to the Rights
Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense,
incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim of liability, and
including any loss, liability or expense incurred through the
Rights Agent's negligence (other than gross negligence).
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration
of this Agreement in reliance upon any Right Certificate or
certificate for the Preferred Shares or Common Stock or for other
securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed
and, where necessary, verified or acknowledged, by the proper
Person or Persons, or otherwise upon the advice of counsel as set
forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
(a) Any corporation into which the Rights Agent or
any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties here
to, provided that such corporation would be eligible for appoint
ment as a successor Rights Agent under the provisions of Section
21 hereof. In case, at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right Certifi-
cates shall not have been countersigned, any successor Rights
Agent may countersign such Right Certificates either in the name
of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right Certificates shall
have the full force provided in the Right Certificates and in
this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their ac-
ceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person and the determination of
"current per share market price") be proved or established by the
Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be here
in specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, the President or any Vice President and by the Trea-
surer or any Assistant Treasurer or the Secretary or any Assis
tant Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights
Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certifi-
cate.
(c) The Rights Agent shall be liable hereunder only
for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any
adjustment required under the provisions of Sections 11 or 13 or
responsible for the manner, method or amount of any such adjust-
ment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after actual notice of
any such adjustment); nor shall it by any act hereunder be deemed
to make any representation or warranty as to the authorization or
reservation of any Preferred Shares or shares of Common Stock to
be issued pursuant to this Agreement or any Right Certificate or
as to whether any Preferred Shares or shares of Common Stock
will, when issued, be validly authorized and issued, fully paid
and nonassessable or as to the value of the Preferred Shares or
shares of Common Stock or any Rights Certificate.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the
President of the Company or any Vice President, and to apply to
such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not the
Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Stock or Preferred Shares by registered or certified mail, and to
the holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer
agent of the Common Stock or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by
the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be (a)
a corporation organized and doing business under the laws of the
United States or any state thereof, which is authorized under
such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $50,000,000, or
(b) an Affiliate controlled by, and whose obligations are guar-
anteed by, a corporation described in clause (a) of this sen-
tence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Rights Agent without fur-
ther act or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Stock, and
mail a notice thereof in writing to the registered holders of the
Right Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares of stock or other securities or property purchasable under
the Right Certificates made in accordance with the provisions of
this Agreement.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at
its option, at any time prior to the close of business on the
tenth day following the Stock Acquisition Date, redeem all but
not less than all of the then outstanding Rights at a redemption
price of $.01 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption
price being hereafter referred to as the "Redemption Price");
provided, however, if the Board of Directors of the Company
authorizes redemption of the Rights in either of the circum-
stances set forth in clauses (i) and (ii) next below, then there
must be Continuing Directors then in office and such authoriza-
tion shall require the concurrence of a majority of such
Continuing Directors: (i) such authorization occurs on or after
the time a Person becomes an Acquiring Person, or (ii) such
authorization occurs on or after the date of a change (resulting
from a proxy or consent solicitation) in a majority of the
directors in office at the commencement of such solicitation if
any Person who is a participant in such solicitation has stated
(or, if upon the commencement of such solicitation, a majority of
the Board of Directors of the Company has determined in good
faith) that such Person (or any of its Affiliates or Associates)
intends to take, or may consider taking, any action which would
result in such Person becoming an Acquiring Person or which would
cause any event described in Section 11(a) or Section 13 hereof
to occur unless, concurrent with such solicitation, such Person
(or one or more of its Affiliates or Associates) is making a cash
tender offer pursuant to a Schedule 14D-1 (or any successor form)
filed with the Securities and Exchange Commission for all
outstanding shares of Common Stock not beneficially owned by such
Person (or by its Affiliates or Associates); provided further,
however, that if, following the occurrence of a Stock Acquisition
Date and following the expiration of the right of redemption
hereunder but prior to the occurrence of any of the events
described in Sections 11(a) or 13 hereof, (1) a Person who is an
Acquiring Person shall have transferred or otherwise disposed of
a number of shares of Common Stock in one transaction or series
of transactions, not directly or indirectly involving the Company
or any of its Subsidiaries, such that such Person is thereafter a
Beneficial Owner of 10% or less of the outstanding shares of
Common Stock, and (2) there are no other Persons, immediately
following the occurrence of the event described in clause (i),
who are Acquiring Persons, then the right of redemption shall be
reinstated and thereafter be subject to the provisions of this
Section 23. Notwithstanding the foregoing, the Company, at its
option, may pay the Redemption Price either in cash or shares of
Common Stock or other securities of the Company deemed by the
Board of Directors, in the exercise of its sole discretion, to be
at least equivalent in value to the Redemption Price. The
redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in
its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights,
evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the Redemption Price
for each Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the Company
shall give written notice of such redemption to the Rights Agent
and the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as it
appears upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the Transfer
Agent for the Common Stock. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights
at any time in any manner other than that specifically set forth
in this Section 23, and other than in connection with the pur-
chase of Common Stock prior to the Distribution Date.
Section 24. Notice of Certain Events. In case the
Company shall propose (a) to pay any dividend payable in stock of
any class to the holders of its Preferred Shares or to make any
other distribution to the holders of its Preferred Shares (other
than a regular periodic cash dividend), or (b) to offer to the
holders of its Preferred Shares rights or warrants to subscribe
for or to purchase any additional Preferred Shares or shares of
stock of any class or any other securities, rights or options, or
(c) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of out-
standing Preferred Shares), or (d) to effect any consolidation or
merger into or with, or to effect any sale or other Transfer (or
to permit one or more of its Subsidiaries to effect any sale or
other Transfer), in one or more transactions, of the Major Part
of the Company and its Subsidiaries (taken as a whole) to, any
other Person, or (e) to effect the liquidation, dissolution or
winding up of the Company, or (f) to declare or pay any dividend
on the Common Stock payable in Common Stock or to effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in
Common Stock), then, in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 25
hereof, a notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, Transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the Common Stock
and/or Preferred Shares, if any such date is to be fixed, and
such notice shall be so given in the case of any action covered
by clause (a) or (b) above at least 20 days prior to the record
date for determining holders of the Preferred Shares for purposes
of such action, and in the case of any such other action, at
least 20 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the
Common Stock and/or Preferred Shares, whichever shall be the
earlier.
Section 25. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Right to or on the Company shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the
Rights Agent) as follows:
Devon Oklahoma Corporation
20 N. Broadway, Suite 1500
Oklahoma City, Oklahoma 73102
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Right Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
The First National Bank of Boston
150 Royall Street, Mail Stop: 45-02-16
Canton, Massachusetts 02021
Attention: Shareholder Services Division
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
Distribution Date, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of certificates
representing shares of Common Stock. From and after the Dis-
tribution Date, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without
the approval of any holders of Right Certificates in order (i) to
cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time
period hereunder (which lengthening or shortening, following the
first occurrence of an event set forth in clauses (i) and (ii) of
the first proviso to Section 23 (a) hereof, shall be effective
only if there are Continuing Directors and shall require the
concurrence of a majority of such Continuing Directors), or (iv)
to change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, this Agreement may
not be supplemented or amended to lengthen, pursuant to clause
(iii) of this sentence, (A) a time period relating to when the
Rights may be redeemed at such time as the Rights are not then
redeemable, or (B) any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights. Upon
the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section 26, the Rights Agent
shall execute such supplement or amendment. Prior to the
Distribution Date, the interests of the holders of Rights shall
be deemed coincident with the interests of the holder of Common
Stock.
Section 27. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any calcula-
tion of the number of shares of Common Stock outstanding at any
particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) as in
effect on the date hereof of the General Rules and Regulations
under the Exchange Act. The Board of Directors of the Company
(and, where specifically provided for herein, the Continuing
Directors) shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers
specifically granted to the Board, or the Company, or as may be
necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) inter-
pret the provisions of this Agreement, and (ii) make all deter
minations deemed necessary or advisable for the administration of
this Agreement (including a determination to redeem or not redeem
the Rights or to amend the Agreement). All such actions, cal-
culations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board (and, where
specifically provided for herein, by the Continuing Directors) in
good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Right Certificates
and all other parties, and (y) not subject the Board or the
Continuing Directors to any liability to the holders of the
Rights.
Section 29. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and
the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Stock).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agree-
ment to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid,
void or unenforceable and a majority of the Continuing Directors
of the Company determines in its good faith judgment that sever-
ing the invalid language from this Agreement would adversely
affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be reinstated and
shall not expire until the close of business on the tenth day
following the date of such determination by the Continuing
Directors.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Oklahoma and for all purposes
shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed
entirely within such state.
Section 32. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 33. Descriptive Headings. Descriptive headings
of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first
above written.
DEVON OKLAHOMA CORPORATION
By J. Larry Nichols
President
ATTEST:
Marian J. Moon
Secretary
THE FIRST NATIONAL BANK OF BOSTON
By Colleen A. Shea
Administration Manager
ATTEST:
Madalyn M. Bronske
Account Manager
