UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
BJ Services Company
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
055482 10 3
(CUSIP Number)
Marc Weitzen, Esq.
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street, 21st Floor
New York, New York 10036
(212) 626-0800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 13, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box //.
Check the following box if a fee is being paid with the statement
//. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7).
NOTE: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
<PAGE>
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Chelonian Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
225,560
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
225,560
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,560
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 0.8%
14 TYPE OF REPORTING PERSON*
CO<PAGE>
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Unicorn Associates Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
225,560
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
225,560
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,560
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 0.8%
14 TYPE OF REPORTING PERSON*
CO<PAGE>
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ACF Industries, Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
225,560
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
225,560
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,560
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 0.8%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ACF Industries Holding Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
225,560
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
225,560
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,560
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 0.8%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Highcrest Investors Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
225,560
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
225,560
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,560
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 0.8%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Icahn Holding Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
225,560
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
225,560
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,560
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 0.8%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
High River Limited Partnership
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC; OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON*
PN
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Riverdale Investors Corp., Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO; AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
617,028
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
617,028
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
617,028
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 2.2%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 055482 10 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Carl C. Icahn
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO; AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
842,588
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
842,588
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
842,588
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 3.0%
14 TYPE OF REPORTING PERSON*
IN
<PAGE>
SCHEDULE 13D
Item 1. Security and Issuer
This statement relates to the common stock, par value
$0.10 per share ("Shares"), of BJ Services Company, a Delaware
corporation (the "Issuer"). The address of the principal executive
offices of the Issuer is 5500 Northwest Central Drive, Houston,
Texas 77092.
Item 2. Identity and Background
The persons filing this statement are Chelonian Corp., a
New York corporation ("Chelonian"), Unicorn Associates Corporation,
a New York corporation ("Unicorn"), ACF Industries, Incorporated,
a New Jersey corporation ("ACF"), ACF Industries Holding Corp., a
Delaware corporation ("Holding"), Highcrest Investors Corp., a
Delaware corporation ("Highcrest"), Icahn Holding Corporation, a
Delaware corporation ("IHC"), High River Limited Partnership, a
Delaware limited partnership ("High River"), Riverdale Investors
Corp., Inc., a Delaware corporation ("Riverdale") and Carl C.
Icahn, a citizen of the United States of America (collectively, the
"Registrants"). The principal business address and the address of
the principal office of the Registrants is 100 South Bedford Road,
Mount Kisco, New York 10549, with the exception of ACF, whose
principal business address and the address of its principal office
is 3301 Rider Trail South, Earth City, Missouri 63045.
Chelonian is a wholly-owned subsidiary of Unicorn.
Unicorn is a wholly-owned subsidiary of ACF. ACF is a wholly-owned
subsidiary of Holding. Holding is a wholly-owned subsidiary of
Highcrest. Highcrest is approximately 99.5% owned by IHC. Mr.
Icahn is the sole stockholder of IHC. Riverdale is the general
partner of High River, and Mr. Icahn is the sole stockholder of
Riverdale.
Registrants may be deemed to be a "group" within the
meaning of Rule 13d-5 promulgated under the Securities Exchange Act
of 1934, as amended (the "Act").
Chelonian and Unicorn are primarily engaged in the
business of investing in securities. ACF is primarily engaged in
the leasing, sale and manufacture of railroad freight and tank
cars. Holding, Highcrest and IHC are primarily engaged in holding,
either directly or through subsidiaries, a majority of the common
stock of ACF. IHC also holds all of the stock of Icahn & Co., Inc.
("Icahn & Co."), a registered broker-dealer. From time to time,
IHC invests directly and indirectly in securities. High River is
primarily engaged in the business of investing in securities.
Riverdale is primarily engaged in the business of owning real
estate and acting as general partner of High River. Mr. Icahn's
present principal occupation is acting as Chairman of the Board of
Directors of ACF.
The name, present principal occupation or employment and
business address of each director and executive officer of
Chelonian, Unicorn, ACF, Holding, Highcrest, IHC and Riverdale are
set forth on Schedule A attached hereto.
Carl C. Icahn is the sole stockholder and director of
Riverdale and the sole stockholder, a director and President of
IHC. Mr. Icahn is also Chairman of the Board, a director and
President of Highcrest and Chairman of the Board and a director of
Holding and ACF. Further, Mr. Icahn is a director of Unicorn and
Chelonian. As such, Mr. Icahn is in a position directly and
indirectly to determine the investment and voting decisions made by
Registrants.
Neither Chelonian, Unicorn, ACF, Holding, Highcrest, IHC,
High River, Riverdale, Mr. Icahn, nor any executive officer or
director of any of the Registrants, has, during the past five
years, (a) been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or (b) been a party to
a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or a finding of any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Pursuant to the Agreement and Plan of Merger, as amended,
effective April 13, 1995, a copy of which is attached hereto as
Exhibits 5(a) and 5(b) and which is hereby incorporated by
reference (the "Merger Agreement"), providing for, among other
things, the merger of The Western Company of North America, a
Delaware corporation ("Western"), into the Issuer (the "Merger"),
Chelonian acquired 166,400 Shares and 59,160 warrants, each warrant
representing the right to purchase one Share at $30 per share (the
"Warrants"). The Warrants are exercisable at any time after the
effective date of the Merger and prior to the fifth anniversary of
the closing date of the Merger. Chelonian acquired the Shares and
the Warrants in exchange for its respective holdings of Western
common stock, common stock which was previously acquired by
Chelonian in the open market.
Prior to the Merger, High River purchased 335,600 Shares
in the open market for the aggregate purchase price of
$5,741,930.50, including payment of commissions. The sources of
funding for the purchase of these Shares were working capital of
High River and borrowings pursuant to a margin account agreement
with Bear, Stearns Securities Corp., Bear, Stearns & Co. Inc.
("Bear Stearns"), a form of which is attached hereto as Exhibit 2
and which is hereby incorporated by reference.
Prior to the Merger, Riverdale purchased 179,100 Shares
in the open market for the aggregate purchase price of $3,530,348,
including payment of commissions. The sources of funding for the
purchase of these Shares were borrowings pursuant to (i) margin
account agreements with each of (A) National Financial Services
Corporation ("NFSC"), a form of which is attached hereto as Exhibit
3 and which is hereby incorporated by reference, and (B) Bear
Stearns, a form of which is attached hereto as Exhibit 2 and which
is hereby incorporated by reference, and (ii) a $10,000,000 line of
credit facility provided to Riverdale by Highcrest, a form of which
is attached hereto as Exhibit 4 and which is hereby incorporated by
reference. Pursuant to the Merger, Riverdale acquired an
additional 859,538 Shares and 305,590 Warrants. These Shares and
Warrants were issued in exchange for Riverdale's respective
holdings of Western common stock, which common stock Riverdale
previously acquired in the open market.
Item 4. Purpose of Transaction
Prior to the Merger, Registrants acquired their Shares
based upon their belief that Shares were undervalued. Registrants
acquired the balance of their Shares in connection with the Merger.
On May 10,1995, Registrants determined to begin selling their
Shares.
Depending on market conditions and other factors,
Registrants reserve the right at any time and from time to time to
acquire additional Shares, whether in open market purchases,
privately negotiated transactions or otherwise. Registrants also
reserve the right at any time and from time to time to dispose of
some or all of their Shares, whether in the open market, in
privately negotiated transactions to third parties or otherwise.
Item 5. Interest in Securities of Issuer
(a) As of the close of business on May 17, 1995,
Registrants may be deemed to beneficially own in the aggregate
842,588 Shares (including the Shares underlying the Warrants),
representing approximately 3.0% of the Issuer's outstanding Shares
(based upon the 27,921,880 Shares stated to be outstanding by the
Company). Registrants have direct beneficial ownership of the
Shares, including the Shares underlying the Warrants, as follows:
<TABLE>
<CAPTION>
NUMBER OF APPROXIMATE PERCENTAGE OF
NAME SHARES OUTSTANDING SHARES
<S> <C> <C>
Chelonian 225,560 0.8%
High River 0 0.0%
Riverdale 617,028 2.2%
</TABLE>
Mr. Icahn (by virtue of his relationships to the other
Registrants, as disclosed in Item 2) may be deemed to beneficially
own (as that term is defined in Rule 13d-3 under the Act), the
Shares which each of Chelonian and Riverdale directly beneficially
own. Mr. Icahn disclaims beneficial ownership of such Shares for
all other purposes.
Each of Unicorn (by virtue of its position as sole
shareholder of Chelonian), ACF (by virtue of its position as sole
shareholder of Unicorn), Holding (by virtue of its position as sole
shareholder of ACF), Highcrest (by virtue of its position as sole
stockholder of Holding) and IHC (by virtue of its position as
controlling stockholder of Highcrest) may be deemed to beneficially
own the Shares which Chelonian directly beneficially owns. Each of
Unicorn, ACF, Holding, Highcrest and IHC disclaims beneficial
ownership of such Shares for all other purposes.
To the best of Registrants' knowledge, except as set
forth herein, neither the directors nor the executive officers of
the Registrants beneficially own any Shares.
(b) Each of Chelonian and Riverdale has the sole power
to vote or to direct the vote and to dispose or to direct the
disposition of the Shares which it directly beneficially owns.
Each of Unicorn, ACF, Holding, Highcrest, IHC and Mr.
Icahn may be deemed to share with Chelonian the power to vote or to
direct the vote and to dispose or to direct the disposition of
Shares which Chelonian directly beneficially owns. Mr. Icahn may
also be deemed to share with Riverdale the power to vote or to
direct the vote and to dispose or to direct the disposition of the
Shares which Riverdale directly beneficially owns.
(c) The following table sets forth all transactions with
respect to the Shares, including all Shares underlying the
Warrants, effected during the past sixty days by each of the
persons named in Item 5(a) above. The transactions taking place on
May 2, 1995 reflect receipt of Shares pursuant to the Merger. All
other transactions set forth below in parentheses reflect open
market sales effected on the New York Stock Exchange.
<TABLE>
<CAPTION>
PRICE PER RIVERDALE HIGH RIVER CHELONIAN
TRADE DATE SHARE ($) SHARES SHARES SHARES
<S> <C> <C> <C> <C>
5/02/95 Not 1,165,128 0 225,560
Applicable
5/10/95 24.5000 (1,900) (335,600) 0
5/12/95 24.4074 (40,500) 0 0
5/15/95 24.2823 (199,200) 0 0
5/16/95 24.086 (178,100) 0 0
5/17/95 24.002 (307,500) 0 0
</TABLE>
(d) No other person has the right to receive or the
power to direct the receipt of dividends from, or the proceeds from
the sale of any Shares which Registrants may be deemed to
beneficially own.
(e) As of May 16, 1995, the Registrants ceased to be
beneficial owners of more than five percent of the Shares.
Contracts, Arrangements, Understandings
or Relationships With Respect to
Item 6. Securities of the Issuer
Registrants are party to a Joint Filing Agreement, a copy
of which is attached hereto as Exhibit 1, with respect to the
filing of this statement and any amendments thereto.
Each of Riverdale and High River is a party to a margin
agreement with Bear Stearns, a form of which is attached hereto as
Exhibit 2. Each of Riverdale and Chelonian is a party to a margin
agreement with NFSC, a form of which is attached hereto as Exhibit
3. Riverdale has entered into a line of credit facility with
Highcrest, a form of which is attached hereto as Exhibit 4.
Item 7. Materials to be filed as Exhibits
The following documents are filed as Exhibits to this
Schedule 13D:
Exhibit 1 Joint Filing Agreement
Exhibit 2 Form of Margin Agreement between Bear
Stearns and each of Riverdale and High
River
Exhibit 3 Form of Margin Agreement between NFSC and
Riverdale
Exhibit 4 Form of Promissory Note between Riverdale
and Highcrest
Exhibit 5(a) Agreement and Plan of Merger
Exhibit 5(b) First Amendment to Agreement and Plan of
Merger
<PAGE>
Schedule A
Name, Business Address and Principal
Occupation of each Executive Officer and
Director of Registrants
----------------------------------------
The following sets forth the name and principal
occupation of each executive officer and director of the
Registrants. Each such person is a citizen of the United States of
America. Except as otherwise indicated, the business address of
each director and officer is 100 South Bedford Road, Mt. Kisco, New
York 10549. To the best of Registrants' knowledge, except as set
forth in this statement on Schedule 13D, none of the directors or
executive officers of the Registrants owns any Shares of Issuer.
<TABLE>
<CAPTION>
ACF INDUSTRIES HOLDING CORP.
NAME POSITION
<S> <C>
Carl C. Icahn Chairman of the Board
and Director
Richard T. Buonato Director, Vice President
and Secretary
Robert J. Mitchell President and Treasurer
<CAPTION>
ACF INDUSTRIES, INCORPORATED
NAME POSITION
<S> <C>
Carl C. Icahn Chairman of the Board
and Director
Alfred D. Kingsley Vice Chairman of the
Board and Director
James J. Unger<F1> President and Director
Roger D. Wynkoop<F1> Executive Vice President
James C. Bates<F1> Vice President and Chief
Financial Officer
Carl D. Eckhoff Vice President-Taxes
John L. Bowers<F1> Vice President and General
Manager-Manufacturing
Operations
William L. Finn<F1> Vice President-Operations and
General Manager-New Business
Group
David R. Sutliff<F1> Vice President-Engineering
George E. Sullivan<F1> Vice President-Sales and
Leasing
Robert J. Mitchell Treasurer and Secretary
<CAPTION>
CHELONIAN CORP.
NAME POSITION
<S> <C>
Carl C. Icahn Director
Edward E. Mattner President and Treasurer
Gail Golden Vice President and Secretary
<CAPTION>
HIGHCREST INVESTORS CORP.
NAME POSITION
<S> <C>
Carl C. Icahn Chairman of the Board, Director
and President
Richard T. Buonato Director, Senior Vice President
and Treasurer
Edward E. Mattner Director
Mark H. Rachesky Managing Director
Gail Golden Vice President and Secretary
<CAPTION>
ICAHN HOLDING CORPORATION
NAME POSITION
<S> <C>
Carl C. Icahn Director and President
Joseph D. Freilich<F2> Director, Secretary and
Treasurer
Mark H. Rachesky Managing Director
Richard T. Buonato<F2> Vice President and Controller
<CAPTION>
RIVERDALE INVESTORS CORP., INC.
NAME POSITION
<S> <C>
Carl C. Icahn Director
Edward E. Mattner President
Robert J. Mitchell Vice President and Treasurer
Gail Golden Vice President and Secretary
Richard T. Buonato Assistant Secretary
<CAPTION>
UNICORN ASSOCIATES CORPORATION
NAME POSITION
<S> <C>
Carl C. Icahn Director
Edward Mattner President and Treasurer
Gail Golden Vice President and Secretary
_______
<FN>
<F1> Business address is 3301 Rider Trial South, Earth City,
Missouri 63045.
<F2> Business address is 1 Wall Street Court, Suite 980, New York,
New York 10005
</TABLE>
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of the knowledge
and belief of each of the undersigned, each of the undersigned
certifies that the information set forth in this statement on
Schedule 13D concerning the common stock, par value $.10 per share,
of BJ Services Company, a Delaware corporation, is true, complete
and correct.
Dated: May 17, 1995
ICAHN HOLDING CORPORATION
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Vice President and
Controller
HIGHCREST INVESTORS CORP.
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Senior Vice President and
Treasurer
ACF INDUSTRIES HOLDING CORP.
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Vice President and
Secretary
ACF INDUSTRIES, INCORPORATED
By: /s/ Robert J. Mitchell
Robert J. Mitchell
Its: Treasurer and Secretary
RIVERDALE INVESTORS CORP., INC.
UNICORN ASSOCIATES CORPORATION
CHELONIAN CORP.
By: /s/ Gail Golden
Gail Golden
Its: Vice President and
Secretary
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP.,
INC.
Its: General Partner
By: /s/ Gail Golden
Gail Golden
Its: Vice President and
Secretary
/s/ Carl C. Icahn
Carl C. Icahn
[Signature Page of Schedule 13D
with respect to BJ Services Company]
<PAGE>
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities
Exchange Act of 1934, as amended, the persons named below agree to
the joint filing on behalf of each of them of a statement on
Schedule 13D (including amendments thereto) with respect to the
common stock, par value $.10 per share of BJ Services Company and
further agree that this Joint Filing Agreement be included as an
Exhibit to such joint filings. In evidence thereof, the
undersigned, being duly authorized, have executed this Joint Filing
Agreement this 16th day of May, 1995.
ICAHN HOLDING CORPORATION
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Vice President and
Controller
HIGHCREST INVESTORS CORP.
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Senior Vice President and
Treasurer
ACF INDUSTRIES HOLDING CORP.
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Vice President and
Secretary
ACF INDUSTRIES, INCORPORATED
By: /s/ Robert J. Mitchell
Robert J. Mitchell
Its: Treasurer and Secretary
RIVERDALE INVESTORS CORP., INC.
UNICORN ASSOCIATES CORPORATION
CHELONIAN CORP.
By: /s/ Gail Golden
Gail Golden
Its: Vice President and
Secretary
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP.,
INC.
Its: General Partner
By: /s/ Gail Golden
Gail Golden
Its: Vice President and
Secretary
/s/ Carl C. Icahn
Carl C. Icahn
[Joint Filing Agreement for Schedule 13D
with respect to BJ Services Company]
<PAGE>
EXHIBIT 2
BEAR STEARNS BEAR, STEARNS SECURITIES CORP.
ONE METROTECH CENTER NORTH
BROOKLYN, NEW YORK 11201-3859
(212) 272-1000
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms
and conditions under which Bear, Stearns Securities Corp.,
Bear, Stearns & Co. Inc., and their successors and assigns
(collectively "Bear Stearns") will transact business with
you including but not limited to the maintenance of your
account(s). If these accounts are cash accounts and you
have fully paid for all securities therein, the provisions
of paragraphs 16 and 17 shall not bind you unless you enter
into a margin transaction.
1. APPLICABLE LAW AND REGULATIONS. All
transactions shall be subject to all applicable law and the
rules and regulations of all federal, state and self-
regulatory agencies, including, but not limited to, the
Board of Governors of the Federal Reserve System and the
constitution, rules and customs of the exchange or market
(and clearing house) where executed.
2. SECURITY INTEREST AND LIEN. As security for
the payment of all of your obligations and liabilities to
Bear Stearns, Bear Stearns shall have a continuing security
interest in all property in which you have an interest held
by or through Bear Stearns or its affiliates, including, but
not limited to, securities, commodity futures contracts,
commercial paper, monies and any after-acquired property.
In addition, in order to satisfy any such outstanding
liabilities or obligations, Bear Stearns may, at any time
and without prior notice to you, use, apply or transfer any
such securities or property interchangeably. In the event
of a breach or default under this Agreement, Bear Stearns
shall have all rights and remedies available to a secured
creditor under any applicable law in addition to the rights
and remedies provided herein.
3. DEPOSITS ON TRANSACTIONS. Whenever Bear
Stearns, in its sole discretion, considers it necessary for
its protection, it may require you to deposit cash or
collateral immediately in your account(s) prior to any
applicable settlement date in order to assure due
performance of your open contractual commitments.
4. BREACH, BANKRUPTCY OR DEFAULT. Any breach of
this Agreement or the filing of a petition or other
proceeding in bankruptcy, insolvency, or for the appointment
of a receiver by or against you, the levy of an attachment
against your account(s) with Bear Stearns, or your death,
mental incompetence or dissolution, or any other grounds for
insecurity, as determined by Bear Stearns in its sole
discretion, shall constitute, at Bear Stearns' election, a
default by you under all agreements Bear Stearns may then
have with you, whether heretofore or hereafter entered into.
In the event of default, Bear Stearns reserves the right to
sell, without prior notice to you, any and all property in
which you have an interest, held by or through Bear Stearns
or any of its affiliates, to buy any or all property which
may have been sold short, to cancel any or all outstanding
transactions and/or to purchase or sell any other securities
or property to offset market risk, and to offset any
indebtedness you may have (either individually or jointly
with others), after which you shall be liable to Bear
Stearns for any remaining deficiency, loss, costs or
expenses sustained by Bear Stearns in connection therewith.
Such purchases and/or sales may be effected publicly or
privately without notice or advertisement in such manner as
Bear Stearns may in its sole discretion determine. At any
such sale or purchase, Bear Stearns may purchase or sell the
property free of any right of redemption. In addition, Bear
Stearns shall have the right to set off and apply any amount
owing from Bear Stearns or any of its affiliates to you
against any indebtedness in your accounts, whether matured
or unmatured.
5. FEES AND CHARGES. You understand that Bear
Stearns may charge commissions and other fees for execution,
custody or any other service furnished to you, and you agree
to pay such commissions and fees at Bear Stearns' then
prevailing rates. You understand further that such
commissions and fees may be changed from time to time, upon
thirty days' prior written notice to you, and you agree to
be bound thereby.
6. TRANSACTION REPORTS AND ACCOUNT STATEMENTS.
Reports of the execution of orders and statements of your
account(s) shall be conclusive if not objected to in writing
within five days in the case of reports of execution, and
ten days in the case of account statements, after such
documents have been transmitted to you by mail or otherwise.
7. DEBIT BALANCES/TRUTH-IN-LENDING. You hereby
acknowledge receipt of Bear Stearns' Truth-in-Lending
disclosure statement. You understand that interest will be
charged on any debit balances in your account(s), in
accordance with the methods described in such statement or
in any amendment or revision thereto which may be provided
to you. Any debit balance which is not paid at the close of
an interest period will be added to the opening balance for
the next interest period.
8. CLEARANCE ACCOUNTS. Bear, Stearns Securities
Corp. carries your account(s) as clearing agent for your
broker. Unless Bear, Stearns Securities Corp. receives from
you prior written notice to the contrary, Bear, Stearns
Securities Corp. may accept from such other broker, without
any inquiry or investigation: (a) orders for the purchase or
sale of securities and other property in your account(s) on
margin or otherwise and (b) any other instructions
concerning your account(s) or the property therein. You
understand and agree that Bear Stearns shall have no
responsibility or liability to you for any acts or omissions
of such broker, its officers, employees or agents. You
agree that your broker and its employees are third-party
beneficiaries of this Agreement, and that the terms and
conditions hereof, including the arbitration provision,
shall be applicable to all matters between or among any of
you, your broker and its employees, and Bear Stearns and its
employees.
9. COSTS OF COLLECTION. You hereby authorize
Bear Stearns to charge you for any reasonable direct or
indirect costs of collection including, but not limited to,
attorneys' fees, court costs and other expenses.
10. IMPARTIAL LOTTERY ALLOCATION. You agree that
in the event Bear Stearns holds on your behalf bonds or
preferred stocks in street name or bearer form which are
callable in part, you will participate in the impartial
lottery allocation system of the called securities in
accordance with the rules of the New York Stock Exchange,
Inc. or any other appropriate self-regulatory organization.
When any such call is favorable, no allocation will be made
to any account(s) in which Bear Stearns has actual knowledge
that its officers, directors or employees have any financial
interest until all other customers are satisfied on an
impartial lottery basis.
11. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear
Stearns' failure to insist at any time upon strict
compliance with this Agreement or with any of the terms
hereof nor any continued course of such conduct on its part
shall constitute or be considered a waiver by Bear Stearns
of any of its rights or privileges hereunder. Any
assignment of your rights and obligations hereunder or
interest in any property held by or through Bear Stearns
without obtaining the prior written consent of an authorized
representative of Bear Stearns shall be null and void.
Notices or other communications, including margin calls,
delivered or mailed to the address provided by you, shall,
until Bear Stearns has received notice in writing of a
different address, be deemed to have been personally
delivered to you.
12. FREE CREDIT BALANCES. You hereby direct Bear
Stearns to use any free credit balance awaiting investment
or reinvestment in your account(s) in accordance with all
applicable rules and regulations and to pay interest thereon
at such rate or rates and under such conditions as are
established from time to time by Bear Stearns for such
account(s) and for the amounts of cash so used.
13. RESTRICTIONS ON ACCOUNT. You understand that
Bear Stearns, in its sole discretion, may restrict or
prohibit trading of securities or other property in your
account(s).
14. CREDIT INFORMATION AND INVESTIGATION. You
authorize Bear Stearns and your broker, in their discretion,
to make and obtain reports concerning your credit standing
and business conduct. You may make a written request within
a reasonable period of time for a description of the nature
and scope of the reports made or obtained by Bear Stearns.
15. SHORT AND LONG SALES. In placing any sell
order for a short account, you will designate the order as
such and hereby authorize Bear Stearns to mark the order as
being "short." In placing any sell order for a long
account, you will designate the order as such and hereby
authorize Bear Stearns to mark the order as being "long."
The designation of a sell order as being for a long account
shall constitute a representation that you own the security
with respect to which the order has been placed, that such
security may be sold without restriction in the open market
and that, if Bear Stearns does not have the security in its
possession at the time you place the order, you shall
deliver the security by settlement date in good deliverable
form or pay to Bear Stearns any losses or expenses incurred
as a result of your failure to make delivery.
16. MARGIN ACCOUNTS. You hereby agree to deposit
and maintain such margin in your margin account(s) as Bear
Stearns may in its sole discretion require, and you agree to
pay forthwith on demand any debt balance owing with respect
to any of your margin account(s). Upon your failure to pay,
or at any time Bear Stearns, in its discretion, deems
necessary for its protection, whether with or without prior
demand, call or notice, Bear Stearns shall be entitled to
exercise all rights and remedies provided in paragraphs 2
and 4 above. No demands, calls, tenders or notices that
Bear Stearns may have made or given in the past in any one
or more instances shall invalidate your waiver of the
requirement to make or give the same in the future. Unless
you advise Bear Stearns to the contrary, you represent that
you are not an affiliate (as defined in Rule 144(a)(1) under
the Securities Act of 1933) of the issuer of any security
held in your account(s).
17. CONSENT TO LOAN OR PLEDGE OF SECURITIES.
Within the limits of applicable law and regulations, you
hereby authorize Bear Stearns to lend either to itself or to
others any securities held by Bear Stearns in your
account(s), together with all attendant rights of ownership
and to use all such property as collateral for its general
loans. Any such property, together with all attendant
rights of ownership, may be pledged, repledged, hypothecated
or rehypothecated either separately or in common with other
such property for any amounts due to Bear Stearns thereon or
for a greater sum, and Bear Stearns shall have no obligation
to retain a like amount of similar property in its
possession and control.
18. LEGALLY BINDING. You hereby agree that this
Agreement and all the terms hereof shall be binding upon you
and your estate, heirs, executors, administrators, personal
representatives, successors and assigns. You agree that all
purchases and sales shall be for your account(s) in
accordance with your oral or written instructions. You
hereby waive any and all defenses that any such instruction
was not in writing as may be required by the Statute of
Frauds or any other similar law, rule or regulation.
19. AMENDMENT; ENTIRE AGREEMENT. You agree that
Bear Stearns may modify the terms of this Agreement at any
time upon prior written notice. By continuing to accept
services from Bear Stearns, you will have indicated your
acceptance of any such modifications. If you do not accept
such modifications, you must notify Bear Stearns in writing;
your account may then be terminated by Bear Stearns, after
which you will remain liable to Bear Stearns for all
remaining liabilities or obligations. Otherwise, this
Agreement may not be waived or modified absent a written
instrument signed by an authorized representative of Bear
Stearns. Except as set forth above, this Agreement
represents the entire agreement and understanding between
you and Bear Stearns concerning the subject matter hereof.
20. NEW YORK LAW TO GOVERN. THIS AGREEMENT SHALL
BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK AND
SHALL BE CONSTRUED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES DETERMINED, IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
21. ARBITRATION.
- ARBITRATION IS FINAL AND BINDING ON THE
PARTIES.
- THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK
REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
- PRE-ARBITRATION DISCOVERY IS GENERALLY MORE
LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
- THE ARBITRATORS' AWARD IS NOT REQUIRED TO
INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S
RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE
ARBITRATORS IS STRICTLY LIMITED.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE
A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH
THE SECURITIES INDUSTRY.
- NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED
CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-
DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION OR WHO IS A
MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE
CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE
CLASS ACTION UNTIL:
(I) THE CLASS CERTIFICATION IS DENIED;
(II) THE CLASS IS DECERTIFIED; OR
(III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL
NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT
EXCEPT TO THE EXTENT STATED HEREIN.
YOU AGREE, AND BY MAINTAINING AN ACCOUNT FOR YOU
BEAR STEARNS AGREES, THAT CONTROVERSIES ARISING BETWEEN YOU
AND BEAR STEARNS, ITS CONTROL PERSONS, PREDECESSORS,
SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE SUCCESSORS,
ASSIGNS AND EMPLOYEES, WHETHER ARISING PRIOR TO, ON OR
SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY
ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE
HELD AT THE FACILITIES AND BEFORE AN ARBITRATION PANEL
APPOINTED BY THE NEW YORK STOCK EXCHANGE, INC., THE AMERICAN
STOCK EXCHANGE, INC., OR THE NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC. (AND ONLY BEFORE SUCH EXCHANGES OR
ASSOCIATION). YOU MAY ELECT ONE OF THE FOREGOING FORUMS FOR
ARBITRATION, BUT IF YOU FAIL TO MAKE SUCH ELECTION BY
REGISTERED MAIL OR TELEGRAM ADDRESSED TO BEAR, STEARNS
SECURITIES CORP. 245 PARK AVENUE, NEW YORK, NEW YORK 10167,
ATTENTION: CHIEF LEGAL OFFICER (OR ANY OTHER ADDRESS OF
WHICH YOU ARE ADVISED IN WRITING), BEFORE THE EXPIRATION OF
TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM BEAR
STEARNS TO MAKE SUCH ELECTION, THEN BEAR STEARNS MAY MAKE
SUCH ELECTION, FOR ANY ARBITRATION SOLELY BETWEEN YOU AND A
BROKER FOR WHICH BEAR STEARNS ACTS AS CLEARING AGENT, SUCH
ELECTION SHALL BE MADE BY REGISTERED MAIL TO SUCH BROKER AT
ITS PRINCIPAL PLACE OF BUSINESS. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY
COURT, STATE OR FEDERAL, HAVING JURISDICTION.
22. SEVERABILITY. If any provision herein is or
should become inconsistent with any present or future law,
rule or regulation of any sovereign government or regulatory
body having jurisdiction over the subject matter of this
Agreement, such provision shall be deemed to be rescinded or
modified in accordance with any such law, rule or
regulation. In all other respects, this Agreement shall
continue to remain in full force and effect.
23. CAPACITY TO CONTRACT; CUSTOMER AFFILIATION.
You represent that you are of legal age and that, unless you
have notified Bear Stearns to the contrary, neither you nor
any member of your immediate family is an employee of any
exchange or member thereof, the National Association of
Securities Dealers, Inc. or a member thereof, or of any
corporation, firm or individual engaged in the business of
dealing, as broker or principal, in securities, options or
futures, or of any bank, trust company or insurance company.
24. EXTRAORDINARY EVENTS. Bear Stearns shall not
be liable for losses caused directly or indirectly by
government restrictions, exchange or market rulings,
suspension of trading, war, strikes or other conditions
beyond its control.
25. HEADINGS. The headings of the provisions
hereof are for descriptive purposes only and shall not
modify or qualify any of the rights or obligations set forth
in such provisions.
26. TELEPHONE CONVERSATIONS. For the protection
of both you and Bear Stearns, and as a tool to correct
misunderstandings, you hereby authorize Bear Stearns at Bear
Stearns' discretion and without prior notice to you, to
monitor and/or record any or all telephone conversations
between you, Bear Stearns and any of Bear Stearns' employees
or agents.
If this is a Joint Account, both parties must sign. Persons
signing on behalf of others should indicate the titles or
capacities in which they are signing.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT:
1. THE SECURITIES IN YOUR MARGIN ACCOUNT(S) AND
ANY SECURITIES FOR WHICH YOU HAVE NOT FULLY PAID TOGETHER
WITH ALL ATTENDANT OWNERSHIP RIGHTS, MAY BE LOANED TO BEAR
STEARNS OR LOANED OUT TO OTHERS AND
2. YOU HAVE RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION
CLAUSE AT PARAGRAPH 21.
THIS AGREEMENT DATED AS OF , 19 .
(Typed or Printed Name)
(Signature) (Mailing Address)
__________________________ Account No.: 905-01422-1-6-007
(Typed or Printed Name)
__________________________ Date:
(Signature)
Accepted
By: Date:
(Bear Stearns Securities Corp.)
<PAGE> EXHIBIT 3
MARGIN ACCOUNT AGREEMENT
To: National Financial Services Corporation ("NFSC" or
"you").
1. I agree as follows with respect to all of my
accounts, in which I have an interest alone or with others,
which I have opened or will open in the future, with you for
the purchase and sale of securities. I hereby acknowledge
that I have read, understand and agree to the terms set
forth below. Upon acceptance of my application(s), I
understand NFSC will maintain an account for me and, as my
broker, buy or sell securities or other products according
to my instructions. All decisions relating to my investment
or trading activity shall be made by me or my duly
authorized representative. Any information I give NFSC on
this account agreement will be subject to verification, and
I authorize you to obtain a credit report about me at any
time. Upon written request, NFSC will provide the name and
address of the credit reporting agency used. I authorize
NFSC and my Broker/Dealer to exchange credit information
about me. My Broker/Dealer also may tape record
conversations with me in order to verify data concerning any
transactions I request, and I consent to such recording. I
also understand that my account(s) is carried by National
Financial Services Corporation (NFSC), and that all terms of
this agreement also apply between me and NFSC. I have
carefully examined my financial resources, investment
objectives, tolerance for risk along with the terms of the
margin agreement, and have determined that margin financing
is appropriate for me. I understand that investing on
margin involves the extension of credit to me and that my
financial exposure could exceed the value of my securities.
2. I am of legal age in the state in which I reside
and represent that, except as otherwise disclosed to you in
writing, I am not an employee of any Exchange or of a Member
Firm of any Exchange or the NASD, or of a bank, trust
company, or insurance company and that I will promptly
notify you if I become so employed.
3. All transactions through NFSC are subject to the
constitution, rules, regulations, customs, and usages of the
exchange, market or clearing house where executed, as well
as to any applicable federal or state laws, rules and
regulations.
4. Any and all credit balances, securities, or
contracts relating thereto, and all other property of
whatsoever kind belonging to me or in which I may have an
interest held by you or carried for my accounts shall be
subject to a general lien for the discharge of my
obligations to you (including unmatured and contingent
obligations) however arising and without regard to whether
or not you have made advances with respect to such property
and without notice to me may be carried in your general
loans and all securities may be pledged, repledged,
hypothecated or rehypothecated, separately or in common with
other securities or any other property, for the sum due to
you thereon or for a greater sum and without retaining in
your possession and control for delivery a like amount of
similar securities or other property. At any time and from
time to time you may, in your discretion, without notice to
me, apply and/or transfer any securities, contracts relating
thereto, cash or any other property therein, interchangeably
between any of my accounts, whether individual or joint from
any of my accounts to any account guaranteed by me. You are
specifically authorized to transfer to my cash account, on
the settlement day following a purchase made in that
account, excess funds available in any of my other accounts,
including, but not limited to any free balances in any
margin account, sufficient to make full payment of this cash
purchase. I agree that any debit occurring in any of my
accounts may be transferred by you at your option to my
margin account.
5. I will maintain such margins as you may in your
discretion require from time to time and will pay on demand
any debit balance owing with respect to any of my accounts.
I will be liable to you for any deficiencies in such account
in the event of the liquidation of such accounts, in whole
or in part, by you or the undersigned. Whenever in your
discretion you deem it desirable for your protection (and
without the necessity of a margin call), including but not
limited to extreme market volatility or trading volumes, an
instance where a petition in bankruptcy or for the
appointment of a receiver is filed by or against me, or an
attachment is levied against my account, or in the event of
notice of my death or incapacity, or incompliance with the
orders of any Exchange, you may, without prior demand,
tender, and without any notice of the time or place of sale,
all of which are expressly waived, sell any or all
securities, or contracts relating thereto which may be in
your possession, or which you may be carrying for me, or buy
any securities, or contracts relating thereto of which my
account or accounts may be short, in order to close out in
whole or in part any commitment in my behalf or you may
place stop orders with respect to such securities and such
sale or purchase may be made at your discretion on any
Exchange or other market where such business is then
transacted, or at public auction or private sale with or
without advertising and neither any demands, calls, tenders
or notices which you may make or give in any one or more
instances nor any prior course of conduct or dealings
between us shall invalidate the aforesaid waivers on my
part. You shall have the right to purchase for your own
account any or all of the aforesaid property at such sale,
discharged of any right of redemption which is hereby
waived. I understand that my financial exposure could
exceed the value of securities in my account.
6. In the absence of a specific demand, all
transactions in any of my accounts are to be paid for,
securities delivered or required margin deposited, no later
than 2 p.m. Eastern Time on the settlement date. NFSC
reserves the right to cancel or liquidate at my risk any
transaction not timely settled. Margin calls are due on the
date indicated regardless of the settlement date of the
transaction. For most stocks and bonds, the settlement date
is the fifth business day following the trade date.
Settlement dates for U.S. government issues vary. Options
settle on the next business day. Interest will be charged
on any debit balance which remains in my account past the
settlement date as explained in the Disclosure of Credit
Terms section of this Agreement.
7. I agree to be charged interest on any credit
extended to or maintained for me by you for the purpose of
purchasing, carrying or trading in any security. The annual
rate of interest which will be charged on net debit balances
will be calculated by means of a formula based on the rate
for brokers' call money published in financial sections of
newspapers. The annual rate of interest is subject to
change without prior notice in accordance with changes in
the brokers' call money rate. With the exception of a
credit balance in the short account, all other credit
balances in all cash and margin accounts are combined and
interest is charged to the margin account on any resulting
debit balance. Interest is computed monthly on the net
debit balances during the month. If during the month, there
is a change in interest rates, separate charges will be
shown for each interest period under the different rate.
The combining of balances, as well as the actual interest
calculations, are done by computer, but interest is arrived
at by multiplying the net debit balance by the effective
rate of interest divided by 360, times the number of days.
In the event there is a decline in the market value of the
securities in the margin account, you may have to request
additional collateral. Generally, such a request for
additional collateral will be made by you when the equity in
the account falls below 30%. However, you retain the right
to require additional margin at any time you deem it
necessary or advisable. Any such call for additional
collateral may be met by delivery of additional marginable
securities or cash. Any securities in any of the accounts
of the undersigned are collateral for any debit balances in
the account with you. A lien is created by these debits to
secure the amount of money owed you. This means that, in
accordance with the terms of this agreement, securities in
the said accounts can be sold by you to redeem or to
liquidate any debit balances in these accounts.
8. I agree that, in giving orders to sell, all
"short" sale orders will be designated as "short" and all
"long" sale orders will be designated as "long" and that the
designation of a sell order as "long" is a representation on
my part that I own the security and, unless otherwise waived
by you in your discretion that I have delivered such
security to you.
9. Reports of the execution of orders and statements
of my account shall be conclusive if not objected to in
writing within five days and ten days, respectively, after
transmittal to me by mail or otherwise.
10. All communications including margin calls may be
sent to me at my address given you, or at such other address
as I may hereafter give you in writing, and all
communications so sent, whether in writing or otherwise,
shall be deemed given to me personally, whether actually
received or not.
11. I am liable for payment upon demand of any debit
balance or other obligation owed in any of my accounts or
any deficiencies following a whole or partial liquidation,
and I agree to satisfy any such demand or obligation.
Interest will accrue on any such deficiency at prevailing
margin rates until paid. I agree to reimburse NFSC for all
reasonable costs and expenses incurred in the collection of
any debit balance or unpaid deficiency in any of my
accounts, including, but not limited to, attorneys' fees.
12. NFSC is not liable for any losses caused directly
or indirectly by government restrictions, exchange or market
rulings, suspension of trading or other conditions beyond
its control, including, but not limited to, extreme market
volatility or trading volumes.
13. No waiver of any provision of this Agreement shall
be deemed a waiver of any other provision, nor a continuing
waiver of the provision or provisions so waived.
14. I understand that no provision of this Agreement
can be amended or waived except by an officer of your
Company, and that this Agreement shall continue in force
until its termination by me is acknowledged in writing by an
officer of your Company, or until written notice of
termination by you shall have been mailed to me at my
address last given you.
15. THIS CONTRACT SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, AND SHALL INURE TO THE
BENEFIT OF YOUR SUCCESSORS AND ASSIGNS, AND SHALL BE BINDING
ON THE UNDERSIGNED, HIS HEIRS, EXECUTORS, ADMINISTRATORS,
SUCCESSORS AND ASSIGNS.
16. If any provision hereof is or at any time should
become inconsistent with any present or future law, rule or
regulation of any securities exchange, or of any sovereign
government or a regulatory body thereof and of these bodies
have jurisdiction over the subject matter of this Agreement,
said provision shall be deemed to be superseded or modified
to conform to such law, rule or regulation, but in all other
respects this Agreement shall continue and remain in full
force and effect.
17. If the undersigned shall consist of more than one
individual, their obligations under Agreement shall be joint
and several.
18. I understand that you may deliver margin calls and
other notices to my agent, __________________________ for
the sole purpose of collection of obligations of mine under
this agreement. I agree to the foregoing and further
understand that _______ may act on your behalf with respect
to margin calls in your discretion.
19. I represent that I have read and understand the
Disclosure of Credit Terms on Transactions. I further
understand that they may be amended from time to time.
20. YOU ARE HEREBY AUTHORIZED TO LEND SEPARATELY OR
TOGETHER WITH THE PROPERTY OF OTHERS EITHER TO YOURSELVES OR
TO OTHERS AND PROPERTY WHICH YOU MAY BE CARRYING FOR ME ON
MARGIN. THIS AUTHORIZATION SHALL APPLY TO ALL ACCOUNTS
CARRIED BY YOU FOR ME AND SHALL REMAIN IN FULL FORCE UNTIL
WRITTEN NOTICE OF REVOCATION IS RECEIVED BY YOU AT YOUR
PRINCIPAL OFFICE IN BOSTON, MASSACHUSETTS.
I REPRESENT THAT I HAVE READ THE TERMS AND CONDITIONS AS
CURRENTLY IN EFFECT AND AGREE TO BE BOUND BY SUCH TERMS AND
CONDITIONS AS CURRENTLY IN EFFECT AND AS MAY BE AMENDED FROM
TIME TO TIME. THIS ACCOUNT IS GOVERNED BY A PRE-DISPUTE
ARBITRATION CLAUSE WHICH IS ENCLOSED. I ACKNOWLEDGE RECEIPT
OF THE PRE-DISPUTE ARBITRATION CLAUSE.
Date:__________________
Customer's Signature/Date__________________________________
_______________________________________
Signature of Joint Tenant (if any)/Date
EXHIBIT 4
$10,000,000 as of January 20, 1994
PROMISSORY NOTE
For Value Received, the undersigned, Riverdale
Investors Corp., Inc. ("Borrower"), hereby promises to pay
to the order of Highcrest Investors Corp. ("Highcrest") the
principal sum of TEN MILLION DOLLARS and NO CENTS
($10,000,000), or if less, the outstanding principal amount
of the Loans made to Borrower by Highcrest pursuant to the
letter agreement (the "Agreement") dated as of January 20,
1994, between Borrower and Highcrest.
The principal amount of this promissory note
("Note") shall be payable on January 19, 1996, in an amount
equal to the then outstanding principal balance of this
Note.
This Note shall bear interest from January 20,
1994, on the unpaid principal hereof at the rate per annum
equal to the prime rate, as established by National
Westminster Bank, USA from time to time. Interest shall be
computed on the basis of a 365-day year for the actual
number of days elapsed, and shall be payable semi-annually
in arrears on the first day of July and January and at
maturity.
On January 19, 1996, this Note shall become at
once due and payable, without notice, presentment or demand
of payment, which are expressly waived. No delay on the
part of Highcrest in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall
constitute a waiver thereof.
This Note is the Note referred to in the Agreement
and may be prepaid in accordance with the provisions
thereof.
All borrowings evidenced by this Note and all
payments and prepayments of the principal hereof and
interest hereon shall be endorsed by the holder hereof on
Schedule A attached hereto and made a part hereof, or on a
continuation hereof which shall be attached hereto and made
a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the
holder hereof to make such a notation or any error in such a
notation shall not in any manner affect the obligation of
Borrower to make payments of principal and interest in
accordance with the terms of this Note.
The Borrower may prepay principal, and, or
interest on the Note, in whole or in part, without premium
or penalty. Each prepayment of principal shall be
accompanied by the amount of interest accrued but unpaid, on
the amount of principal prepaid to the date of prepayment.
IN WITNESS WHEREOF, the Borrower has caused this
Note to be duly executed as of the 20th day of January,
1994.
RIVERDALE INVESTORS CORP., INC.
By:___________________________
Robert J. Mitchell,
Vice President and Treasurer
[Promissory Note- Highcrest
Riverdale regarding
$10 million line of credit
dated as of January 20, 1994]
Exhibit 5(a)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 17, 1994,
among BJ SERVICES COMPANY ("BJ"), WCNA ACQUISITION CORP., a wholly
owned subsidiary of BJ ("BJ Sub"), and THE WESTERN COMPANY OF NORTH
AMERICA ("Western"), each a Delaware corporation.
WHEREAS, the respective Boards of Directors of BJ, BJ Sub and
Western have approved the merger of Western with and into BJ Sub
(the "Merger"), upon the terms and subject to the conditions set
forth herein; and
WHEREAS, for federal income tax purposes, it is intended that
the Merger shall qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises, and the
representations, warranties and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions hereof, at the Effective Time (as defined in Section
1.2) and in accordance with the General Corporation Law of the
State of Delaware (the "Delaware Corporation Law"), Western shall
be merged with and into BJ Sub, which shall be the surviving
corporation in the Merger (hereinafter sometimes referred to as the
"Surviving Corporation") whose corporate existence shall continue
under the Delaware Corporation Law. At the Effective Time the
separate existence of Western shall cease.
Section 1.2 Effective Time of the Merger. As soon as
practicable after the Closing (as defined in Section 1.3 hereof),
BJ, BJ Sub and Western shall cause this Agreement to be duly
certified and acknowledged in accordance with the Delaware
Corporation Law, and as soon as practicable thereafter BJ shall
cause the Surviving Corporation to file with the Delaware Secretary
of State and the appropriate County Recorder a certificate of
merger (the "Certificate of Merger") in such form as required by,
and executed in accordance with, the Delaware Corporation Law. The
Merger shall become effective as of the time and date of the filing
of the Certificate of Merger with the Delaware Secretary of State,
unless otherwise provided in the Certificate of Merger (the
"Effective Time").
Section 1.3 Closing and Closing Date. Unless this Agreement
shall have been terminated and the transactions herein contemplated
shall have been abandoned pursuant to the provisions of Section
10.1, the closing (the "Closing") of this Agreement shall take
place (a) at 10:00 a.m. (New York time) on the fifth Trading Day
(as defined in Section 3.1(b) hereof) immediately following the
date on which the waiting periods under the Hart Scott Act (as
hereinafter defined) shall have expired or otherwise been
terminated and all other conditions to the respective obligations
of the parties set forth in Article IX hereof shall have been
satisfied or waived or (b) at such other time and date as BJ and
Western shall agree (such date and time on and at which the Closing
occurs being referred to herein as the "Closing Date"). The Closing
shall take place at such location as BJ and Western shall agree.
Section 1.4 Effects of the Merger. The Merger shall have the
effects set forth in the Delaware Corporation Law. Without limiting
the generality of the foregoing, and subject thereto, at the
Effective Time, all the properties, rights, privileges, powers and
franchises of Western and BJ Sub
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shall vest in the Surviving Corporation, and all debts,
liabilities, obligations and duties of Western and BJ Sub shall
become the debts, liabilities, obligations and duties of the
Surviving Corporation.
Section 1.5 Alternative Structure. Notwithstanding anything to
the contrary provided elsewhere in this Agreement, if BJ notifies
Western in writing prior to the Closing Date that BJ prefers to
structure the Merger so that Western merges into BJ and BJ is the
Surviving Corporation after the Effective Time, the parties hereto
shall forthwith execute an appropriate amendment to this Agreement
which eliminates BJ Sub as a party hereto and otherwise reflects
the foregoing changes and any other changes required to be made as
a result thereof.
ARTICLE II
THE SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation. The Certificate of
Incorporation of BJ Sub, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation after the Effective Time, until amended in
accordance with its terms, or as otherwise provided by law.
Section 2.2 Bylaws. The Bylaws of BJ Sub as in effect
immediately prior to the Effective Time shall be the Bylaws of the
Surviving Corporation unless and until amended in accordance with
their terms or the Certificate of Incorporation of the Surviving
Corporation, or as otherwise provided by law.
Section 2.3 Officers and Directors. The officers and directors
of BJ Sub immediately prior to the Effective Time shall be the
officers and directors of the Surviving Corporation until their
respective successors are duly elected and/or appointed and qualify
in the manner provided in the Certificate of Incorporation and
Bylaws of the Surviving Corporation, or as otherwise provided by
law. The senior executive officers of Western, Western, BJ and BJ
Sub will enter into the Senior Executive Termination Agreements,
dated the date hereof (the "Senior Executive Termination
Agreements").
ARTICLE III
CONVERSION AND EXCHANGE OF SECURITIES
Section 3.1 Conversion of Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of any of
the parties hereto or any holder of any of the following
securities:
(a) Western Common Stock. Except as otherwise provided
herein and subject to Section 3.3, each share of common stock,
par value $.10 per share, of Western ("Western Common Stock")
issued and outstanding immediately prior to the Effective Time
(other than Dissenting Shares, as hereinafter defined, and
shares of Western Common Stock owned by BJ, BJ Sub or any
other direct or indirect subsidiary of BJ) shall be converted
into, exchanged for and represent the right to receive
(without interest) (i) $20.00 in cash ("Cash Consideration")
and .2 warrants (the "BJ Warrants") to purchase one share of
BJ Common Stock in substantially the form annexed to the
Warrant Agreement (the "Warrant Agreement") attached hereto as
Exhibit A at an exercise price of $30 per share of BJ Common
Stock (subject to adjustment as provided in the Warrant
Agreement) ("Warrant Consideration"), or (ii) Stock
Consideration (as defined in Section 3.1(b) (ii)) and Warrant
Consideration, in each case as the holder thereof shall have
elected or be deemed to have elected, in accordance with
Section 3.3 (collectively, the "Merger Consideration");
provided, however, that, in any event, if between the date of
this Agreement and the Effective Time the outstanding shares
of BJ Common Stock or Western Common Stock shall have been
changed into a different number of shares or a different class
by reason of any stock dividend, subdivision,
reclassification, recapitalization, split,
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<PAGE>
combination or exchange of shares, the Cash Consideration, the
Warrant Consideration and the Stock Consideration shall be
correspondingly adjusted to reflect such stock dividend,
subdivision, reclassification, recapitalization, split,
combination or exchange of shares. All shares of Western
Common Stock so converted or exchanged shall no longer be
outstanding and shall automatically be canceled and retired
and shall cease to exist, and each certificate previously
evidencing any such shares shall thereafter represent the
right to receive, upon the surrender of such certificate in
accordance with the provisions of Section 3.6, the applicable
Merger Consideration and any cash to be paid in lieu of
fractional shares of BJ Common Stock and associated fractional
rights ("BJ Purchase Rights") to purchase one one-hundredth of
a share of Series Two Junior Preferred Stock, without par
value, of BJ ("BJ Junior Preferred Stock") pursuant to the
Rights Agreement, dated as of January 12, 1994, as amended,
between BJ and First Chicago Trust Company of New York, as
rights agent, to which such holder is entitled pursuant to
Section 3.4 (without interest thereon). The holders of such
certificates previously evidencing such shares of Western
Common Stock outstanding immediately prior to the Effective
Time shall cease to have any rights with respect to such
shares of Western Common Stock except as otherwise provided
herein or by law.
(b) Certain Definitions. As used in this Agreement:
(i) "Closing Price" means the average of the
midpoint of the daily high and low trading prices of BJ
Common Stock, rounded to four decimal places, as reported
in The Wall Street Journal's New York Stock Exchange
Composite Transactions Reports, for each of the first 20
consecutive Trading Days in the period commencing 25
Trading Days prior to the Closing Date.
(ii) "Stock Consideration" is (x) if the Closing
Price of BJ Common Stock is $17.25 or lower, 1.1594
shares of BJ Common Stock, together with a corresponding
number of BJ Purchase Rights; (y) if the Closing Price of
BJ Common Stock is $22.25 or greater, .8989 shares of BJ
Common Stock, together with a corresponding number of BJ
Purchase Rights; or (z) if the Closing Price of the BJ
Common Stock is greater than $17.25 but less than $22.25,
that portion of a share of BJ Common Stock equal to the
quotient of $20.00 divided by the Closing Price of the BJ
Common Stock, together with a corresponding number of BJ
Purchase Rights.
(iii) "Trading Day" means a day on which the New
York Stock Exchange, Inc. (the "NYSE") is open for
trading.
(c) Western Common Stock Held by Western or BJ; Western
Preferred Stock. Each share of Western Common Stock held in
the treasury of Western or held by BJ, BJ Sub or any other
direct or indirect subsidiary of BJ immediately prior to the
Effective Time shall be canceled and cease to exist, and no
payment or other consideration shall be made in respect
thereof. The Western Preferred Stock shall be canceled, and no
payment or other consideration shall be made in respect
thereof.
(d) BJ Sub Shares. Each share of common stock, par value
$0.01 per share, of BJ Sub issued and outstanding immediately
prior to the Effective Time shall remain outstanding and shall
be unchanged after the Merger and shall thereafter constitute
all of the issued and outstanding capital stock of the
Surviving Corporation.
(e) Convertible Debentures. The 7 1/4% Convertible
Subordinated Debentures due January 15, 2015 of Western (the
"Western Convertible Debentures") which are outstanding at the
Effective Time shall continue to be outstanding subsequent to
the Effective Time as debt instruments of the Surviving
Corporation, subject to their respective terms and conditions
and the execution and delivery of a supplemental indenture in
the form required thereby.
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<PAGE>
Following the Effective Time of the Merger, each outstanding
Western Convertible Debenture will be convertible into the
amount of Stock Consideration (and cash in lieu of fractional
shares of BJ Common Stock and associated BJ Purchase Rights),
Cash Consideration and Warrant Consideration which the holder
thereof would have had the right to receive after the
Effective Time of the Merger if such Western Convertible
Debenture had been converted immediately prior to the
Effective Time of the Merger and the holder thereof had made
the Stock Election (as defined in Section 3.3(b)) with respect
to 50% of such holder's Western Convertible Debentures and the
Cash Election (as defined in Section 3.3(b)) with respect to
the remaining 50% of such holder's Western Convertible
Debentures.
(f) Senior Notes. The 12-7/8% Senior Notes due December
1, 2002 of Western ("Western Senior Notes") that are
outstanding at the Effective Time shall continue to be
outstanding subsequent to the Effective Time as debt
instruments of the Surviving Corporation, subject to their
respective terms and conditions and the execution and delivery
of a supplemental indenture in the form required thereby.
Section 3.2 Treatment of Western Options. (a) Immediately
prior to the Effective Time, Western shall take such action as may
be necessary so that each outstanding Western Option (as defined in
Section 6.2) whether or not then exercisable, shall be canceled by
Western, and each holder of a canceled Western Option shall be
entitled to receive, as soon as practicable after the Effective
Time, in consideration for the cancellation of such Western Option
an amount in cash equal to the product (the "Spread") of (i) the
total number of shares of Western Common Stock subject to such
holder's Western Option and (ii) the excess, if any, of (x) $20.00
plus the "Warrant Consideration Value" (as hereinafter defined)
over (y) the exercise price per share of the Western Common Stock
previously subject to such Western Option. The "Warrant
Consideration Value" shall be equal to the greater of (i) $1.00 or
(ii) .2 multiplied by the "Warrant Current Market Price" (as
defined below).
(b) For the purpose of any computation hereunder, the
"Warrant Current Market Price" means the average of the midpoint of
the daily high and low trading prices of BJ Warrants, rounded to
four decimal places, on a when-issued basis as reported in The Wall
Street Journal's New York Stock Exchange Composite Transactions
Reports, for each of the first 20 consecutive Trading Days in the
period commencing 25 Trading Days prior to the Closing Date or, if
the BJ Warrants are not then admitted to trading on the NYSE on a
when-issued basis, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which such securities
are admitted to trading on a when-issued basis or, if the BJ
Warrants are not admitted to trading on any national securities
exchange on a when-issued basis, 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"), of BJ Warrants on a when-issued basis.
If on any such Trading Day or Days the BJ Warrants are not quoted
on a when-issued basis by any such organization, the 20 Trading Day
period referred to above shall be reduced by the number of such
Trading Days on which the BJ Warrants are not so quoted. If the BJ
Warrants are not quoted on a when-issued basis on any Trading Day
during such 20 Trading Day period, the Warrant Current Market Price
shall be deemed to be $1.00.
Section 3.3 Allocation of Merger Consideration; Election
Procedures. (a) Allocation. Notwithstanding anything in this
Agreement to the contrary, the maximum number of shares of Western
Common Stock (the "Cash Election Number") to be converted into the
right to receive Cash Consideration and Warrant Consideration in
the Merger shall be equal to (i) 50% of the number of shares of
Western Common Stock issued and outstanding immediately prior to
the Effective Time of the Merger less (ii) the sum of (A) the
number of Dissenting Shares (as defined in Section 3.5), if any,
which are not to be treated as Non-Election Shares pursuant to
Section 3.5, and (B) the number of shares of Western Common Stock
to be canceled in accordance with Section 3.1(c). The number of
shares of Western Common Stock to be converted into the right to
receive Stock Consideration and Warrant Consideration in the Merger
(the "Stock Election Number") shall be equal to the number of
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<PAGE>
shares of Western Common Stock issued and outstanding immediately
prior to the Effective Time of the Merger less the sum of (i) the
Cash Election Number, (ii) the number of Dissenting Shares, if any,
which are not to be treated as Non-Election Shares pursuant to
Section 3.5 and (iii) the number of shares of Western Common Stock
to be canceled in accordance with Section 3.1(c).
(b) Election. Subject to allocation and proration in
accordance with the provisions of this Section 3.1, each record
holder of shares of Western Common Stock (other than Dissenting
Shares, if any, which are not to be treated as Non-Election Shares
pursuant to Section 3.5 and shares to be canceled in accordance
with Section 3.1(c)) issued and outstanding immediately prior to
the Election Deadline (as defined below) shall be entitled to elect
to receive in respect of each such share (in addition to Warrant
Consideration) (i) Cash Consideration (a "Cash Election") or (ii)
Stock Consideration (a "Stock Election") or to indicate that such
record holder has no preference as to the receipt (in addition to
Warrant Consideration) of Cash Consideration or Stock Consideration
for such shares (a "Non-Election"). Shares of Western Common Stock
in respect of which a Non-Election is made (including shares in
respect of which such an election is deemed to have been made
pursuant to this Section 3.3 and Section 3.5) (collectively,
"Non-Election Shares") shall be deemed by BJ, in its sole and
absolute discretion, to be shares in respect of which Cash
Elections or Stock Elections have been made.
(c) Procedure for Elections. Elections pursuant to Section
3.3(b) shall be made on a form to be mutually agreed upon by
Western and BJ (a "Form of Election") to be provided by the
Exchange Agent (as defined in Section 3.6) for that purpose to
holders of record of Western Common Stock, together with
appropriate transmittal materials, at the time of mailing to
holders of record of Western Common Stock of the Joint Proxy
Statement (as defined in Section 4.3) in connection with the
Stockholders Meetings referred to in Section 8.3. Elections shall
be made by mailing to the Exchange Agent a duly completed Form of
Election. To be effective, a Form of Election must be (i) properly
completed, signed and submitted to the Exchange Agent at its
designated office, by 5:00 p.m., on the business day that is two
Trading Days prior to the Closing Date (which date shall be
publicly announced by BJ as soon as practicable but in no event
less than five Trading Days prior to the Closing Date) (the
"Election Deadline") and (ii) accompanied by the certificates
representing the shares of Western Common Stock as to which the
election is being made (or by an appropriate guarantee of delivery
of such certificates by a commercial bank or trust company in the
United States or a member of a registered national security
exchange or of the National Association of Securities Dealers,
Inc., provided such certificates are in fact delivered to the
Exchange Agent within eight Trading Days after the date of
execution of such guarantee of delivery). Western shall use its
best efforts to make a Form of Election available to all persons
who become holders of record of Western Common Stock between the
date of mailing described in the first sentence of this Section
3.3(c) and the Election Deadline. BJ shall determine, in its sole
and absolute discretion, which authority it may delegate in whole
or in part to the Exchange Agent, whether Forms of Election have
been properly completed, signed and submitted or revoked. The
decision of BJ (or the Exchange Agent, as the case may be) in such
matters shall be conclusive and binding. Neither BJ nor the
Exchange Agent will be under any obligation to notify any person of
any defect in a Form of Election submitted to the Exchange Agent.
A holder of shares of Western Common Stock that does not submit an
effective Form of Election prior to the Election Deadline shall be
deemed to have made a Non-Election.
(d) Revocation of Election; Return of Certificates. An
election may be revoked, but only by written notice received by the
Exchange Agent prior to the Election Deadline. Any certificate(s)
representing shares of Western Common Stock which have been
submitted to the Exchange Agent in connection with an election
shall be returned- without charge to the holder thereof in the
event such election is revoked as aforesaid and such holder
requests in writing the return of such certificate(s). Upon any
such revocation, unless a duly completed Election Form is
thereafter submitted in accordance with paragraph (c), such shares
shall be Non-Election Shares. In the event that this Agreement is
terminated pursuant to the provisions hereof and any shares of
Western Common Stock
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<PAGE>
have been transmitted to the Exchange Agent pursuant to the
provisions hereof, such shares shall promptly be returned without
charge to the person submitting the same.
(e) Proration of Cash Election Shares. In the event that the
aggregate number of shares in respect of which Cash Elections have
been made and, in the case of Non-Election Shares, are deemed to
have been made (collectively, the "Cash Election Shares") exceeds
the Cash Election Number, all shares of Western Common Stock in
respect of which Stock Elections have been made and all
Non-Election Shares in respect of which Stock Elections are deemed
to have been made (collectively, the "Stock Election Shares") shall
be converted into the right to receive Stock Consideration (in
addition to Warrant Consideration), and the Cash Election Shares
shall be converted into the right to receive Stock Consideration or
Cash Consideration (in addition to Warrant Consideration) in the
following manner:
(i) Cash Election Shares shall be deemed converted to
Stock Election Shares, on a pro-rata basis for each record
holder of Western Common Stock with respect to those shares of
Western Common Stock, if any, of such record holder which are
Cash Election Shares, so that the number of Cash Election
Shares so converted, when added to the other Stock Election
Shares, shall equal as closely as practicable the Stock
Election Number, and all such Cash Election Shares so
converted shall be converted into the right to receive Stock
Consideration (and cash in lieu of fractional interests in
accordance with Section 3.4) (in addition to Warrant
Consideration); and
(ii) any remaining Cash Election Shares shall be
converted into the right to receive Cash Consideration (in
addition to Warrant Consideration).
(f) Proration of Stock Election Shares. In the event that the
aggregate number of Stock Election Shares exceeds the Stock
Election Number, all Cash Election Shares shall be converted into
the right to receive Cash Consideration (in addition to Warrant
Consideration), and all Stock Election Shares shall be converted
into the right to receive Stock Consideration or Cash Consideration
(in addition to Warrant Consideration) in the following manner:
(i) Stock Election Shares shall be deemed converted into
Cash Election Shares, on a pro-rata basis for each record
holder of Western Common Stock with respect to those shares of
Western Common Stock, if any, of such record holder which are
Stock Election Shares, so that the number of Stock Election
Shares so converted, when added to the other Cash Election
Shares, shall equal as closely as practicable the Cash
Election Number, and all such shares of Western Common Stock
so converted shall be converted into the right to receive the
Cash Consideration (in addition to Warrant Consideration); and
(ii) the remaining Stock Election Shares shall be
converted into the right to receive the Stock Consideration
(and cash in lieu of fractional interests in accordance with
Section 3.4) (in addition to Warrant Consideration).
(g) No Proration. In the event that neither paragraph (e) nor
paragraph (f) of this Section 3.3 is applicable, all Cash Election
Shares shall be converted into the right to receive Cash
Consideration (in addition to Warrant Consideration) and all Stock
Election Shares shall be converted into the right to receive Stock
Consideration (and cash in lieu of fractional interests in
accordance with Section 3.4) (in addition to Warrant
Consideration).
(h) Computations. The Exchange Agent, in consultation with
BJ, shall make all computations to give effect to this Section 3.3.
Section 3.4 Fractional Interests. No certificates or scrip
representing fractional shares of BJ Common Stock and associated BJ
Purchase Rights or fractions of BJ Warrants shall be issued in
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<PAGE>
connection with the Merger, and such fractional interests will not
entitle the owner thereof to any rights of a stockholder or
warrantholder of BJ. In lieu of any such fractional securities,
each holder of shares of Western Common Stock exchanged pursuant to
Section 3.1(a) who would otherwise have been entitled to receive a
fraction of a share of BJ Common Stock and associated BJ Purchase
Rights or a fraction of a BJ Warrant (after taking into account all
shares of Western Common Stock then held of record by such holder)
shall receive (a) cash (without interest) in an amount equal to the
product of such fractional part of a share of BJ Common Stock
multiplied by the Closing Price, and/or (b) cash (without interest)
in an amount equal to the product of such fraction of a BJ Warrant
multiplied by the Warrant Consideration Value.
Section 3.5 Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, no share of Western Common Stock,
the holder of which shall have complied with the provisions of
Section 262 of the Delaware Corporation Law as to appraisal rights
(a "Dissenting Share"), shall be deemed converted into and to
represent the right to receive Merger Consideration hereunder; and
the holders of Dissenting Shares, if any, shall be entitled to
payment, solely from the Surviving Corporation, of the appraised
value of such Dissenting Shares to the extent permitted by and in
accordance with the provisions of Section 262 of the Delaware
Corporation Law; provided, however, that (i) if any holder of
Dissenting Shares shall, under the circumstances permitted by the
Delaware Corporation Law, subsequently deliver a written withdrawal
of his or her demand for appraisal of such Dissenting Shares, or
(ii) if any holder fails to establish his or her entitlement to
rights to payment as provided in such Section 262, or (iii) if
neither any holder of Dissenting Shares nor the Surviving
Corporation has filed a petition demanding a determination of the
value of all Dissenting Shares within the time provided in such
Section 262, such holder or holders (as the case may be) shall
forfeit such right to payment for such Dissenting Shares pursuant
to such Section 262 and each such Dissenting Share shall thereupon
be treated as a Non-Election Share for purposes of Section 3.3.
Western shall give BJ (i) prompt notice of any written demands for
appraisal of any Western Common Stock, attempted withdrawals of
such demands, and any other instruments served pursuant to
applicable law received by Western relating to stockholders' rights
of appraisal and (ii) the opportunity to direct all negotiations
and proceedings with respect to demands for appraisal under the
Delaware Corporation Law. Western shall not, except with the prior
written consent of BJ, voluntarily make any payment with respect to
any demands for appraisals of Western Common Stock, offer to settle
or settle any such demands or approve any withdrawal of any such
demands.
Section 3.6 Exchange of Certificates. (a) As soon as
practicable after the execution and delivery of this Agreement and,
in any event, not less than five Trading Days prior to the mailing
to holders of Western Common Stock of the Joint Proxy Statement, BJ
shall designate a bank or trust company (or such other person or
persons as shall be reasonably acceptable to BJ and Western) to act
as exchange agent (the "Exchange Agent") in effecting the exchange
of certificates (the "Certificates") that, prior to the Effective
Time, represented shares of Western Common Stock for Merger
Consideration pursuant to Section 3.1(a) hereof (and cash in lieu
of fractional interests in accordance with Section 3.4). Upon the
surrender of each such Certificate representing shares of Western
Common Stock, the Exchange Agent shall pay the holder of such
Certificate the Merger Consideration multiplied by the number of
shares of Western Common Stock formerly represented by such
Certificate in exchange therefor (and cash in lieu of fractional
interests in accordance with Section 3.4), and such Certificate
shall forthwith be canceled. Until so surrendered and exchanged,
each such Certificate that prior to the Effective Time represented
shares of Western Common Stock (other than Certificates
representing Dissenting Shares which are not to be treated as
Non-Election Shares pursuant to Section 3.3 or shares of Western
Common Stock to be canceled in accordance with Section 3.1(c))
shall represent solely the right to receive Merger Consideration
(and cash in lieu of fractional interests in accordance with
Section 3.4). No interest shall be paid or accrue on Merger
Consideration.
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(b) As of or promptly after the Effective Time, BJ shall
deposit or cause to be deposited, in trust with the Exchange Agent,
for the benefit of the holders of shares of Western Common Stock,
for exchange in accordance with this Article III, the aggregate
Merger Consideration.
(c) The cash portion of the aggregate Merger Consideration
shall be invested by the Exchange Agent, as directed by and for the
benefit of the Surviving Corporation, provided that such
investments shall be limited to direct obligations of the United
States of America, obligations for which the full faith and credit
of the United States of America is pledged to provide for the
payment of principal and interest, commercial paper rated of the
highest quality by Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc.
("S&P"), and certificates of deposit issued by a commercial bank
whose long-term debt obligations are rated at least A2 by Moody's
or at least A by S&P, in each case having a maturity not in excess
of one year.
(d) Promptly following the date which is six months after the
Effective Time, the Exchange Agent shall deliver to the Surviving
Corporation all cash, shares of BJ Common Stock, Certificates and
other documents in its possession relating to the transactions
described in this Agreement, and the Exchange Agent's duties shall
terminate. Thereafter, each holder of a Certificate may surrender
such Certificate to the Surviving Corporation and (subject to
applicable abandoned property, escheat and similar laws and, in the
case of Dissenting Shares, subject to applicable law) receive in
exchange therefor the applicable Merger Consideration (and cash in
lieu of fractional interests in accordance with Section 3.4),
without any interest or dividends or other payments thereon.
(e) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of any shares
of Western Common Stock. If, after the Effective Time, Certificates
formerly representing shares of Western Common Stock are presented
to the Surviving Corporation or the Exchange Agent, they shall be
canceled and (subject to applicable abandoned property, escheat and
similar laws and, in the case of Dissenting Shares, subject to
applicable law) exchanged for Merger Consideration (and cash in
lieu of fractional interests in accordance with Section 3.4), as
provided in this Article III.
(f) No dividends or other distributions declared or made
after the Effective Time with respect to shares of BJ Common Stock
shall be paid to the holder of any unsurrendered Certificate with
respect to the shares of BJ Common Stock they are entitled to
receive and no cash payment in lieu of fractional interests shall
be paid pursuant to Section 3.4 until the holder of such
Certificate shall surrender such Certificate, in accordance with
the provisions of this Agreement.
Section 3.7 No Liability. Neither BJ nor the Surviving
Corporation shall be liable to any holder of shares of Western
Common Stock for any Merger Consideration in respect of such shares
(or dividends or distributions with respect thereto) delivered to
a public official pursuant to any applicable abandoned property,
escheat or similar law. In the event any Certificate shall have
been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming such Certificate to be lost,
stolen or destroyed and, if required by BJ, the posting by such
person of a bond in customary form and amount as indemnity against
any claim that may be made against it with respect to such
Certificate, the Exchange Agent will issue in exchange for such
lost, stolen or destroyed Certificate the Merger Consideration (and
cash in lieu of fractional interests in accordance with Section
3.4), without any interest or dividends or other payments thereon,
upon due surrender of and deliverable in respect of such
Certificate pursuant to this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BJ
BJ represents and warrants to Western as follows, except as
set forth in the disclosure letter delivered to Western by BJ on or
prior to the date hereof(the "BJ Disclosure Memorandum"):
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Section 4.1 Organization and Qualification. BJ is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the requisite
corporate power and authority to own its assets and to carry on its
business as it is now being conducted or proposed to be conducted.
BJ is duly qualified as a foreign corporation to do business, and
is in good standing, in each jurisdiction where the character of
its properties owned or held under lease or the nature of its
activities makes such qualification necessary, except where the
failure to be so qualified or be in good standing is not reasonably
likely, individually or in the aggregate, to have a BJ Material
Adverse Effect (as defined below).
As used in this Agreement, the term "BJ Material Adverse
Effect" means a material adverse effect on the business,
properties, assets, financial condition or results of operations of
BJ and its subsidiaries taken as a whole; provided, however, that
any change or changes in, or caused by, the prices of oil, gas or
chemical products, general economic conditions or local, regional,
national or international industry conditions shall not be deemed
to constitute a BJ Material Adverse Effect, it also being
understood that a BJ Material Adverse Effect shall not include a
change with respect to BJ resulting from any change in law, rule or
regulation or generally accepted accounting principles,
consistently applied, that applies to both BJ and Western.
Section 4.2 Capitalization. As of the date hereof, the
authorized capital stock of BJ consists of 40,000,000 shares of BJ
Common Stock and 5,000,000 shares of preferred stock, without par
value. As of November 11, 1994, 15,717,270 shares of BJ Common
Stock (together with the associated BJ Purchase Rights) were
validly issued and outstanding, fully paid and nonassessable and no
other shares of BJ's capital stock were outstanding. Since November
11, 1994, no shares of BJ's capital stock have been issued, except
for shares of BJ Common Stock issued pursuant to (i) the exercise
of stock options granted to employees under BJ's 1990 Stock Option
Plan ("BJ Options") and (ii) pursuant to other employee plans
disclosed in the BJ SEC Documents (as defined in Section 4.5
hereof) ("Other Plans"). Except for (i) BJ Options, (ii) the BJ
Purchase Rights and (iii) the Other Plans, as of the date hereof
there are no options, warrants, calls, subscriptions, rights,
agreements, commitments or other obligations outstanding obligating
BJ to issue or sell shares of its capital stock or any securities
exercisable or exchangeable for or convertible into any shares of
its capital stock. There are no voting trusts or other agreements
or understandings to which BJ or any of its subsidiaries is a party
or by which BJ or any of its subsidiaries is bound with respect to
the voting of BJ Common Stock or the stock of any subsidiary of BJ.
Except as disclosed prior to the date hereof in the BJ SEC
Documents (as defined in Section 4.5), there are no agreements or
other understandings to which BJ or any of its subsidiaries is a
party or by which BJ or any of its subsidiaries is bound with
respect to the repurchase, redemption or other acquisition of or
payment in respect of any shares of capital stock of BJ or any of
its subsidiaries. Each of the shares of BJ Common Stock issuable in
accordance with this Agreement in exchange for Western Common Stock
at the Effective Time will be, when so issued, duly authorized,
validly issued, fully paid and nonassessable and free of preemptive
rights, and will include an associated BJ Purchase Right.
Section 4.3 BJ Subsidiaries. Each Significant Subsidiary (as
defined in Rule 12b-1 under the Exchange Act) of BJ is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the
requisite corporate power and authority to own its assets and to
carry on its business as it is now being conducted or proposed to
be conducted. Each such Significant Subsidiary of BJ is duly
qualified as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of its
properties directly or indirectly owned or held under lease or the
nature of its activities makes such qualification necessary, except
where the failure to be so qualified or be in such good standing is
not, individually or in the aggregate, reasonably likely to have a
BJ Material Adverse Effect. Except as disclosed in the BJ SEC
Documents and except for directors' qualifying shares, all the
outstanding shares of capital stock of each such Significant
Subsidiary of BJ are directly or indirectly owned (of record and
beneficially) by BJ or a wholly owned subsidiary of BJ. All the
outstanding shares of capital stock of such Significant
Subsidiaries of BJ are
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validly issued, fully paid and nonassessable, and those shares
owned by BJ or by a subsidiary of BJ are owned free and clear of
any pledges, liens, claims, security interests or other
encumbrances of any kind other than those arising pursuant to the
certificate of incorporation or bylaws or other organizational
document of such Significant Subsidiary, as required by law or
pursuant to an agreement among the equity owners of such
Significant Subsidiary to which BJ, directly or indirectly through
a subsidiary, is a party. As of the date hereof, there are no
options, warrants, calls, subscriptions, rights, agreements,
commitments or other obligations of any character relating to the
issued or unissued capital stock or other securities of any of the
Significant Subsidiaries of BJ other than those arising pursuant to
the certificate of incorporation or bylaws or other organizational
document of such Significant Subsidiary, as required by law
pursuant to an agreement among the equity owners of such
Significant Subsidiary to which BJ, directly or indirectly through
a subsidiary, is a party. BJ does not directly or indirectly have
any investment in any corporation, partnership, joint venture or
other business association or entity which equity investment was
when initially made, or has a current market value as of the date
hereof, in excess of $750,000, except as disclosed prior to the
date of this Agreement in the BJ SEC Documents.
Section 4.4 Authority Relative to this Agreement. BJ has the
requisite corporate power and authority to enter into this
Agreement and the Warrant Agreement and to carry out its
obligations hereunder and thereunder. The execution and delivery of
each of this Agreement and the Warrant Agreement and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by BJ's Board of Directors and, except
for the approval of its stockholders as contemplated in Section
8.3, no other corporate proceedings on the part of BJ are necessary
to authorize any of this Agreement, the Warrant Agreement and the
consummation of the transactions contemplated hereby and thereby.
This Agreement has been duly executed, acknowledged and delivered
by each of BJ and BJ Sub and (assuming the valid authorization,
execution and delivery of this Agreement by Western) is a valid and
binding obligation of BJ and of BJ Sub, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting creditors' rights generally or by
equitable principles. When executed and delivered by BJ at the
Closing, the Warrant Agreement will be a valid and binding
obligation of BJ, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
creditors' rights generally or by general equitable principles and
except that indemnification for certain matters pertaining to
federal and state securities laws may not be enforceable by reason
of applicable public policy. Neither BJ nor BJ Sub is subject to or
obligated under (i) any charter or bylaw provision or (ii) any
other contract, indenture, loan document, license, franchise,
permit, order, decree or instrument binding on BJ or any of its
subsidiaries which would be breached or violated by its executing
and performing this Agreement and the transactions contemplated
hereby or, with respect to BJ, the Warrant Agreement (or pursuant
to which the transactions contemplated hereby may give rise to any
right of termination, cancellation, acceleration or payment) other
than, in the case of clause (ii) only, any breaches or violations
(or rights of termination, cancellation, acceleration or payment)
which will not, either singly or in the aggregate, have a BJ
Material Adverse Effect or materially impair the ability of BJ to
perform its obligations hereunder or under the Warrant Agreement.
Except as referred to herein or in connection, or in compliance,
with the provisions of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the "Hart Scott Act"), the Securities Act of 1933, as
amended, and the rules promulgated thereunder (the "Securities
Act"), the Securities Exchange Act of 1934, as amended, and the
rules promulgated thereunder (the "Exchange Act"), applicable NYSE
rules or rules promulgated by the National Association of
Securities Dealers, Inc. ("NASD") and the corporation, securities,
takeover or blue sky laws of the various states, no filing or
registration with, or authorization, consent or approval of, any
public body or authority is necessary for the consummation by BJ of
the Merger or the other transactions contemplated by this Agreement
and the Warrant Agreement, other than such as may be required
solely because Western is a party to the Merger, except where the
failure to so file or register or to obtain such authorizations,
consents or approvals is not reasonably likely to have a BJ
Material Adverse Effect.
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Section 4.5 Reports and Financial Statements. BJ has filed
with the Securities and Exchange Commission (the "Commission") all
prospectuses, proxy statements and reports (including all exhibits
and schedules thereto and documents incorporated by reference
therein) which were required under the Securities Act or the
Exchange Act to be filed with the Commission by BJ since December
31, 1991, and will file all proxy statements and reports (including
all exhibits and schedules thereto and documents incorporated by
reference therein) required to be filed after the date hereof and
prior to the Effective Time (collectively, the "BJ SEC Documents").
As of their respective dates, the BJ SEC Documents filed with the
Commission prior to the date hereof complied in all material
respects with all material requirements of the Securities Act or
the Exchange Act, as the case may be, and the BJ SEC Documents to
be filed with the Commission after the date hereof will so comply.
BJ has made available to Western copies of all BJ SEC Documents
filed with the Commission prior to the date hereof and will deliver
promptly to Western after they are filed with the Commission all BJ
SEC Documents filed after the date hereof. None of the BJ SEC
Documents contained, or will contain, as of its date, any untrue
statement of a material fact or omitted or will omit, to state a
material fact required to be stated therein or necessary to make
the statements made, in light of the circumstances under which they
were made, not misleading. The (i) audited fiscal year end
consolidated statements of financial position and related
consolidated statements of operations, stockholders' equity and
cash flows, including the notes thereto, together with the reports
thereon of BJ's independent public accountants, and (ii) unaudited
interim consolidated statements of financial position and the
related unaudited interim consolidated statements of operations,
stockholders' equity and cash flows, which are, or will be,
included in the BJ SEC Documents or incorporated by reference
therein present, or will present, in accordance with the books and
records of BJ and its subsidiaries, fairly the financial position,
results of operations, cash flows and financial position of BJ and
its subsidiaries as of the dates and for the periods indicated and
are, or will be, in conformity with generally accepted accounting
principles, except, in the case of interim financial statements,
for the lack of explanatory footnote disclosures required by
generally accepted accounting principles, and subject to normal
year end audit adjustments. BJ's consolidated balance sheet at June
30, 1994 included in the BJ SEC Documents is hereinafter called the
"Latest BJ Balance Sheet." There is no liability or obligation of
any kind, whether accrued, absolute, fixed or contingent, of BJ or
any subsidiary of BJ required by generally accepted accounting
principles to be reflected or reserved against or otherwise
disclosed in the Latest BJ Balance Sheet which is not so reflected
or reserved against of which the executive officers of BJ have
knowledge, that individually or in the aggregate is reasonably
likely to have a BJ Material Adverse Effect, except for normal
year-end adjustments and other adjustments described in the Latest
BJ Balance Sheet.
Section 4.6 Absence of Certain Changes or Events. Except as
disclosed prior to the date of this Agreement in BJ SEC Documents,
since September 30, 1993, the respective businesses of BJ and its
subsidiaries have been conducted only in the ordinary course and
consistent with past practice and there has not been (i) any change
in the business, assets, liabilities, financial condition or
results of operations of BJ and its subsidiaries, taken as a whole,
that is reasonably likely to (x) have a BJ Material Adverse Effect
or (y) as of the date hereof, materially impair the ability of BJ
to perform its obligations hereunder or (ii) any material change by
BJ or its subsidiaries in accounting principles or methods except
insofar as required by a change in generally accepted accounting
principles or rules of the Commission.
Section 4.7 Tax Matters. Each of BJ and each of its
Significant Subsidiaries, and any consolidated, combined, unitary
or aggregate group for tax purposes of which BJ or any of its
Significant Subsidiaries is or has been a member, has timely filed
all material Tax Returns (as hereinafter defined) required to be
filed by it, has paid all Taxes (as hereinafter defined) shown
thereon to be due and has provided adequate reserves in its
financial statements for any Taxes that have not been paid but are
properly accruable under generally accepted accounting principles,
whether or not shown as being due on any returns. Except to the
extent that the inaccuracy of any of the following, individually or
in the aggregate, is not reasonably likely to have a BJ Material
Adverse
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Effect, no claim for unpaid Taxes has become a lien or encumbrance
of any kind against the property of BJ or any of its Significant
Subsidiaries or is being asserted against BJ or any of its
Significant Subsidiaries; no audit of any Tax Return of BJ or any
of its Significant Subsidiaries is being conducted by a Tax
authority; and no extension of the statute of limitations on the
assessment of any Taxes has been granted by BJ or any of its
Significant Subsidiaries and is currently in effect. As used
herein, "Taxes" shall mean any taxes of any kind, including but not
limited to those measured by or referred to as income, gross
receipts, sales, use, ad valorem, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp,
occupation, premium, value added, property or windfall profits or
assessments of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts imposed by
any governmental authority, domestic or foreign. Neither BJ nor any
of its Significant Subsidiaries has made an election under Section
341(f) of the Internal Revenue Code. As used herein, "Tax Return"
shall mean any return, report or statement required to be filed
with any governmental authority with respect to Taxes.
Section 4.8 Environmental Matters. (a) Except to the extent
that the inaccuracy of any of the following, individually or in the
aggregate, is not reasonably likely to have a BJ Material Adverse
Effect, to the knowledge of the executive officers of BJ:
(i) BJ and its subsidiaries hold, and are in compliance
with and have been in compliance with for the last two years,
all Environmental Permits (as hereinafter defined), and are
otherwise in substantial compliance and have been in
substantial compliance for the last two years with, all
applicable Environmental Laws (as hereinafter defined) and
there is no condition that is reasonably likely to prevent or
materially interfere in the near future with compliance by BJ
and its subsidiaries with Environmental Laws;
(ii) no modification, revocation, reissuance, alteration,
transfer or amendment of any Environmental Permit, or any
review by, or approval of, any third party of any
Environmental Permit is required in connection with the
execution or delivery of this Agreement or the consummation by
BJ of the transactions contemplated hereby or the operation of
the business of BJ or any of its subsidiaries on the Closing
Date;
(iii) neither BJ nor any of its subsidiaries has received
any Environmental Claim (as hereinafter defined), nor has any
Environmental Claim been threatened against BJ or any of its
subsidiaries;
(iv) neither BJ nor any of its subsidiaries has entered
into, agreed to or is subject to any outstanding judgment,
decree, order or consent arrangement with any governmental
authority under any Environmental Laws, including without
limitation those relating to compliance with any Environmental
Laws or to the investigation, cleanup, remediation or removal
of Hazardous Materials (as hereinafter defined);
(v) there are no circumstances that are reasonably
likely to give rise to liability under any agreements with any
person pursuant to which BJ or any subsidiary of BJ would be
required to defend, indemnify, hold harmless, or otherwise be
responsible for any violation by or other liability or expense
of such person, or alleged violation by or other liability or
expense of such person, arising out of any Environmental Law;
and
(vi) there are no other circumstances or conditions that
are reasonably likely to give rise to liability of BJ or any
of its subsidiaries under any Environmental Laws.
(b) For purposes of this Agreement, the terms below shall
have the following meanings:
"Environmental Claim" means any written complaint,
notice, claim, demand, action, suit or judicial,
administrative or arbitral proceeding by any person to BJ or
any of its
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subsidiaries (or, for purposes of Section 6.10, Western or any
of its subsidiaries) asserting liability or potential
liability (including without limitation liability or potential
liability for investigatory costs, cleanup costs, governmental
response costs, natural resource damages, property damage,
personal injury, fines or penalties) arising out of, relating
to, based on or resulting from (i) the presence, discharge,
emission, release or threatened release of any Hazardous
Materials at any location, (ii) circumstances forming the
basis of any violation or alleged violation of any
Environmental Laws or Environmental Permits, or (iii)
otherwise relating to obligations or liabilities under any
Environmental Law.
"Environmental Permits" means all permits, licenses,
registrations, exemptions and other governmental
authorizations required under Environmental Laws for BJ or any
of its subsidiaries (or, for purposes of Section 6.10, Western
or any of its subsidiaries) to conduct their operations as
presently conducted.
"Environmental Laws" means all applicable foreign,
federal, state and local statutes, rules, regulations,
ordinances, orders, decrees and common law relating in any
manner to pollution or protection of the environment, to the
extent and in the form that such exist at the date hereof.
"Hazardous Materials" means all hazardous or toxic
substances, wastes, materials or chemicals, petroleum
(including crude oil or any fraction thereof) and petroleum
products, asbestos and asbestos-containing materials,
pollutants, contaminants and all other materials and
substances, including but not limited to radioactive materials
regulated pursuant to any Environmental Laws or that could
result in liability under any Environmental Laws.
Section 4.9 Litigation. Except as disclosed prior to the date
hereof in BJ SEC Documents, there is no suit, action, investigation
or proceeding pending or, to the knowledge of the executive
officers of BJ, threatened against or affecting BJ or any of its
subsidiaries at law or in equity before or by any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or before
any arbitrator of any kind, that is reasonably likely to have a BJ
Material Adverse Effect or (with respect to such matters that are
pending or threatened as of the date hereof) materially impair the
ability of BJ to perform its obligations hereunder and there is no
judgment, decree, injunction, rule or order of any court,
governmental department,commission, board, bureau, agency,
instrumentality or arbitrator outstanding against or applicable to
BJ or any of its subsidiaries that is reasonably likely to have a
BJ Material Adverse Effect or (with respect to such items that are
outstanding or applicable as of the date hereof) materially impair
the ability of BJ to perform its obligations hereunder.
Section 4.10 Governmental Licenses and Permits; ComPliance
with Law. Except as disclosed prior to the date hereof in the BJ
SEC Documents, since September 30, 1993 neither BJ nor any of its
Significant Subsidiaries has received notice of any revocation or
modification of any federal, state, local or foreign governmental
license, certification, tariff, permit, authorization or approval
the revocation or modification of which has had or is reasonably
likely to have a BJ Material Adverse Effect. To the knowledge of
the executive officers of BJ, the conduct of the business of each
of BJ and its subsidiaries complies with all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or
arbitration awards applicable thereto, except for violations or
failures to comply, if any, that, individually or in the aggregate,
are not reasonably likely to have a BJ Material Adverse Effect.
Section 4.11 Required Vote of BJ Stockholders. The affirmative
vote of holders of outstanding shares of BJ Common Stock provided
for in NYSE Rule 312.05 is required to approve this Agreement and
the issuance of BJ Common Stock and BJ Warrants in the Merger. No
other vote of the stockholders of BJ is required by law, the
Restated Certificate of Incorporation or Bylaws of BJ or otherwise
to approve this Agreement and the transactions contemplated hereby.
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Section 4.12 BJ Action. The Board of Directors of BJ (at a
meeting duly called and held on November 17, 1994) unanimously (a)
determined that the Merger is fair to and in the best interests of
BJ and its stockholders, (b) approved this Agreement and the
issuance of BJ Common Stock and BJ Warrants in the Merger, (c)
resolved to recommend approval by BJ's stockholders of this
Agreement and the issuance of BJ Common Stock and BJ Warrants in
the Merger and (d) directed that this Agreement be submitted to
BJ's stockholders for their approval, including approval of the
Stock Consideration and Warrant Consideration to be issued pursuant
to this Agreement.
Section 4.13 Opinion of Financial Advisor. On the date hereof,
BJ has received the opinion of Merrill Lynch & Co. to the effect
that the Merger is fair to BJ's stockholders.
Section 4.14 Brokers and Finders. Except for Merrill Lynch &
Co, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with
this Agreement or the Merger based upon arrangements made by or on
behalf of BJ or BJ Sub. Except as expressly set forth in this
Agreement, no valid claim against BJ or BJ Sub or, to the knowledge
of the executive officers of BJ, against Western exists for payment
of any fee or other compensation as a result of any of the
transactions contemplated hereby.
Section 4.15 Available Funds. BJ will have available to it at
the Effective Time all funds necessary to satisfy all of its
obligations hereunder and in connection with the transactions
contemplated herein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING BJ SUB
BJ and BJ Sub jointly and severally represent and warrant to
Western as follows:
Section 5.1 Organization. BJ Sub is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware. BJ Sub has not engaged in any business since
it was incorporated, except in connection with the Merger and the
other transactions contemplated hereby.
Section 5.2 Capitalization. The authorized capital stock of BJ
Sub consists of 1,000 shares of common stock, par value $0.01 per
share, 100 shares of which are validly issued and outstanding,
fully paid and nonassessable and are owned by BJ free and clear of
all liens, claims and encumbrances.
Section 5.3 Authority Relative to this Agreement. BJ Sub has
the requisite corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by BJ
Sub's Board of Directors and its sole stockholder and no other
corporate proceedings on the part of BJ Sub are necessary to
authorize this Agreement and the consummation of the transactions
contemplated hereby. Except as referred to herein or in connection,
or in compliance, with the provisions of the Act, the Securities
Act, the Exchange Act, applicable NYSE rules and the corporation,
securities, takeover or blue sky laws of the various states, no
filing or registration with, or authorization, consent or approval
of, any public body or authority is necessary for the consummation
by BJ Sub of the Merger or the other transactions contemplated by
this Agreement, other than such as may be required solely because
Western is a party to the Merger.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF WESTERN
Western represents and warrants to BJ and BJ Sub, except as
set forth in the disclosure letter delivered to BJ by Western on or
prior to the date hereof (the "Western Disclosure Memorandum") as
follows:
Section 6.1 Organization and Qualification. Western is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the requisite
corporate power and authority to own its assets and to carry on its
business as it is now being conducted or proposed to be conducted.
Western is duly qualified as a foreign corporation to do business,
and is in good standing, in each jurisdiction where the character
of its properties owned or held under lease or the nature of its
activities makes such qualification necessary, except where the
failure to be so qualified or be in such good standing is not
reasonably likely to, individually or in the aggregate, have a
Western Material Adverse Effect (as defined below).
As used in this Agreement, the term "Western Material Adverse
Effect" means a material adverse effect on the business,
properties, assets, financial condition or results of operations of
Western and its subsidiaries taken as a whole; provided, however,
that any change or changes in, or caused by, the prices of oil, gas
or chemical products, general economic conditions or local,
regional, national or international industry conditions shall not
be deemed to constitute a Western Material Adverse Effect, it also
being understood that a Western Material Adverse Effect shall not
include a change with respect to Western resulting from any change
in law, rule or regulation or generally accepted accounting
principles, consistently applied, that applies to both BJ and
Western.
Section 6.2 Capitalization. The authorized capital stock of
Western consists of 50,000,000 shares of Western Common Stock and
6,000,000 shares of preferred stock, without par value ("Western
Preferred Stock"). As of November 11, 1994, 18,243,238 shares of
Western Common Stock were validly issued and outstanding, fully
paid and nonassessable and no other shares of Western's capital
stock were outstanding. As of November 9, 1994, Western had
outstanding options to purchase, in the aggregate, 1,018,714 shares
of Western Common Stock granted under the Western Plans (as defined
in Section 6.7), which includes options to purchase 268,750 shares
of Western Common Stock granted under an agreement, dated May 12,
1989, with an executive officer of Western, options to purchase
37,500 shares of Western Common Stock granted under Western's
Non-Employee Directors' Plan and options to purchase 712,464 shares
of Western Common Stock granted under Western's Long-Term
Performance Incentive Plan (collectively, the "Western Options").
As of October 31, 1994, there was outstanding $88,746,000 principal
amount of Western Convertible Debentures convertible into 5,220,352
shares of Western Common Stock. Since November 11, 1994, no shares
of Western's capital stock have been issued. Except for Western
Options, Western Convertible Debentures and the preferred stock
purchase rights (the "Western Rights") issued pursuant to Western's
Stockholders Protection Rights Agreement dated as of March 5, 1990,
as amended (the "Western Rights Agreement"), there are no options,
warrants, calls, subscriptions, rights, agreements, commitments or
other obligations outstanding obligating Western to issue or sell
any shares of its capital stock or any securities exercisable or
exchangeable for or convertible into any shares of its capital
stock. There are no voting trusts or other agreements or
understandings to which Western or any of its subsidiaries is a
party or by which Western or any of its subsidiaries is bound with
respect to the voting of Western Common Stock or the stock of any
subsidiary of Western. Western has provided to BJ true and correct
lists of the record holders as of November 9, 1994 of all Western
Options. Except as disclosed prior to the date hereof in the
Western SEC Documents (as defined in Section 6.5), there are no
agreements or other understandings to which Western or any of its
subsidiaries is a party or by which Western or any of its
subsidiaries is bound with respect to the repurchase, redemption or
other acquisition of or payment in respect of any shares of capital
stock of Western or any of its subsidiaries.
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Section 6.3 Western Subsidiaries. Each Significant Subsidiary
(as defined in Rule 12b-1 under the Exchange Act) of Western is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the
requisite corporate power and authority to own its assets and to
carry on its business as it is now being conducted or proposed to
be conducted. Each such Significant Subsidiary of Western is duly
qualified as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of its
properties directly or indirectly owned or held under lease or the
nature of its activities makes such qualification necessary, except
where the failure to be so qualified or be in such good standing is
not, individually or in the aggregate, reasonably likely to have a
Western Material Adverse Effect. Except as disclosed in the Western
SEC Documents all the outstanding shares of capital stock of each
such Significant Subsidiary of Western are directly or indirectly
owned (of record and beneficially) by Western or a wholly owned
subsidiary of Western. All the outstanding shares of capital stock
of such Significant Subsidiaries of Western are validly issued,
fully paid and nonassessable, and those shares owned by Western or
by a subsidiary of Western are owned free and clear of any pledges,
liens, claims, security interests or other encumbrances of any kind
other than those arising pursuant to the certificate of
incorporation or bylaws or other organizational document of such
Significant Subsidiary, as required by law or pursuant to an
agreement among the equity owners of such Significant Subsidiary to
which Western, directly or indirectly through a subsidiary, is a
party. As of the date hereof, there are no options, warrants,
calls, subscriptions, rights, agreements, commitments or other
obligations of any character relating to the issued or unissued
capital stock or other securities of any of the Significant
Subsidiaries of Western other than those arising pursuant to the
certificate of incorporation or bylaws or other organizational
document of such Significant Subsidiary, as required by law or
pursuant to an agreement among the equity owners of such
Significant Subsidiary to which Western, directly or indirectly
through a subsidiary, is a party. Western does not directly or
indirectly have any equity investment in any corporation,
partnership, joint venture or other business association or entity
which equity investment was when initially made, or has a current
market value as of the date hereof, in excess of $750,000, except
as disclosed prior to the date of this Agreement in the Western SEC
Documents.
Section 6.4 Authority Relative to this Agreement. Subject to
the approval of this Agreement by the holders of at least
two-thirds of the outstanding shares of Western Common Stock,
Western has the requisite corporate power and authority to enter
into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by
Western's Board of Directors and, except for the approval of its
stockholders as contemplated in Section 8.3, no other corporate
proceedings on the part of Western are necessary to authorize this
Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed, acknowledged and
delivered by Western and (assuming the valid authorization,
execution and delivery of this Agreement and the transactions
contemplated hereby by each of BJ and BJ Sub) is a valid and
binding obligation of Western, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting creditors' rights generally or by equitable principles
and except that indemnification for certain matters pertaining to
federal and state securities laws may not be enforceable by reason
of applicable public policy. Western is not subject to or obligated
under (i) any charter or bylaw provision or (ii) any other
contract, indenture, loan document, license, franchise, permit,
order, decree or instrument (except for master service contracts
which are terminable upon no more than 90 days' notice) binding on
Western or any of its subsidiaries which would be breached or
violated by its executing and performing this Agreement and the
transactions contemplated hereby (or pursuant to which the
transactions contemplated hereby may give rise to any right of
termination, cancellation, acceleration or payment) other than, in
the case of clause (ii) only, any breaches or violations (or rights
of termination, cancellation, acceleration or payment) which will
not, either singly or in the aggregate, have a Western Material
Adverse Effect or materially impair the ability of Western to
perform its obligations hereunder. Except as referred to herein or
in connection, or in compliance, with the provisions of the Hart
Scott Act, the Securities Act, the Exchange Act, applicable NYSE
rules and the
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corporation, securities, takeover or blue sky laws of the various
states, no filing or registration with, or authorization, consent
or approval of, any public body or authority is necessary for the
consummation by Western of the Merger or the other transactions
contemplated by this Agreement, other than such as may be required
solely because BJ or BJ Sub is a party to the Merger, except where
the failure to so file or register or to obtain such
authorizations, consents or approvals is not reasonably likely to
have a Western Material Adverse Effect.
Section 6.5 Reports and Financial Statements. Western has
filed with the Commission all prospectuses, proxy statements and
reports (including all exhibits and schedules thereto and documents
incorporated by reference therein) which were required under the
Securities Act or the Exchange Act to be filed with the Commission
by Western since December 31, 1991, and will file all proxy
statements and reports (including all exhibits and schedules
thereto and documents incorporated by reference therein) required
to be filed after the date hereof and prior to the Effective Time
(collectively, the "Western SEC Documents"). As of their respective
dates, the Western SEC Documents filed with the Commission prior to
the date hereof complied in all material respects with all material
requirements of the Securities Act or the Exchange Act, as the case
may be, and the Western SEC Documents to be filed with the
Commission after the date hereof will so comply. Western has made
available to BJ copies of all Western SEC Documents filed with the
Commission prior to the date hereof and will deliver promptly to BJ
after they are filed with the Commission all Western SEC Documents
filed after the date hereof. None of the Western SEC Documents
contained, or will contain, as of its date, any untrue statement of
a material fact or omitted, or will omit, to state a material fact
required to be stated therein or necessary to make the statements
made, in light of the circumstances under which they were made, not
misleading. The (i) audited fiscal year end consolidated balance
sheets and related consolidated statements of operations,
stockholders' equity and cash flows, including the notes thereto,
together with the reports thereon of Western's independent public
accountants, and (ii) unaudited interim consolidated balance sheets
and the related unaudited interim consolidated statements of
operations, stockholders' equity and cash flows, which are, or will
be, included in Western SEC Documents or incorporated by reference
therein, present, or will present, in accordance with the books and
records of Western and its subsidiaries, fairly the financial
position, results of income, cash flows and financial position of
Western and its subsidiaries as of the dates and for the periods
indicated and are, or will be, in conformity with generally
accepted accounting principles, except, in the case of interim
financial statements, for the lack of explanatory footnote
disclosures required by generally accepted accounting principles,
and subject to normal year end audit adjustments. Western's
consolidated balance sheet at September 30, 1994 included in the
Western SEC Documents is hereinafter called the "Latest Western
Balance Sheet." There is no liability or obligation of any kind,
whether accrued, absolute, fixed or contingent, of Western or any
subsidiary of Western required by generally accepted accounting
principles to be reflected or reserved against or otherwise
disclosed in the Latest Western Balance Sheet which is not so
reflected or reserved against of which the executive officers of
Western have knowledge, that individually or in the aggregate is
reasonably likely to have a Western Material Adverse Effect, except
for normal year-end adjustments and other adjustments described in
the Latest Western Balance Sheet.
Section 6.6 Absence of Certain Changes or Events. Except as
disclosed prior to the date of this Agreement in the Western SEC
Documents, since December 31, 1993, (a) the respective businesses
of Western and its subsidiaries have been conducted only in the
ordinary course and consistent with past practice, (b) there has
not been any change in the business, assets, properties, financial
condition or results of operations of Western and its subsidiaries,
taken as a whole, that is reasonably likely to (x) have a Western
Material Adverse Effect (it being acknowledged by BJ that the
public announcement on September 13, 1994 by BJ of its proposal to
acquire Western and subsequent events related thereto, including,
without limitation, entering into this Agreement and the
transactions contemplated hereby, could have a negative impact on
operating results prior to the Effective Time) or (y) as of the
date hereof, materially impair the ability of Western to perform
its obligations hereunder and (c) there has not been:
(i) any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of
capital stock of Western, or any repurchase, redemption or
other acquisition by Western of any outstanding shares of
capital stock or other equity securities of Western or any
options, warrants or rights of any kind to acquire any, or any
securities exercisable or exchangeable for or convertible into
shares of, capital stock or other equity securities of Western
(other than the extinguishment of options upon the exercise of
Western Options and other than purchases of Western Common
Stock by the trustee under the Western Retirement Savings
Plan);
(ii) any change in any method of accounting or accounting
practice by Western, except for any such change required to be
implemented pursuant to generally accepted accounting
principles or rules of the Commission; or
(iii) any (A) grant of any severance or termination pay
to any director, officer or employee of Western or any of its
subsidiaries (other than settlement arrangements with
employees other than officers in accordance with past practice
and pursuant to which Western or its subsidiaries obtain
certain waivers of rights), (B) entering into of any
employment, deferred compensation or other similar agreement
(or any amendment to any such existing agreement) with any
director, officer or employee of Western or any subsidiary
thereof, (C) any increase in benefits payable under any
existing severance or termination pay policies or employment
agreements, or (D) any increase in compensation, bonus or
other benefits payable to directors, officers or employees of
Western or any subsidiary thereof, other than in the ordinary
course (including normal individual periodic performance
reviews and related compensation and benefit increases and
bonus payments and awards under existing plans).
Section 6.7 Benefit Plans. (a) Section 6.7(a) of the Western
Disclosure Memorandum contains a complete list of each "employee
benefit plan" (within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), and
all other employee benefit plans, agreements, programs, policies or
other arrangements, whether or not subject to ERISA (including,
without limitation, multiemployer plans within the meaning of ERISA
section 3(37), stock purchase, stock option, severance, employment,
change-in-control, fringe benefit, bonus, incentive or deferred
compensation plans) under which any employee or director or former
employee or director of Western, including any beneficiary thereof,
has any present or future right to benefits or under which Western
has any present or future liability (other than payments by
insurance companies under terminated insurance contracts). All such
plans, agreements, programs, policies and arrangements shall be
collectively referred to as the "Western Plans".
(b) With respect to each Western Plan, Western has delivered
or, in the case of clauses (i), (ii) and (iv) below, made available
to BJ a current, accurate and complete copy (or, to the extent no
such copy exists, an accurate description) thereof and, to the
extent applicable: (i) any related trust agreement, annuity
contract or other funding instrument; (ii) the most recent Internal
Revenue Service determination letter; (iii) any summary plan
description and other written communications by Western to its
employees which are materially inconsistent with any summary plan
description; and (iv) the most recent (I) Form 5500 and attached
schedules; (II) audited financial statements; (III) actuarial
valuation reports; and (IV) attorney's response to an auditor's
request for information.
(c) (i) Each Western Plan has been established and
administered in accordance with its terms, and in substantial
compliance with the applicable provisions of ERISA, the Internal
Revenue Code of 1986, as amended (the "Code") and other applicable
laws, rules and regulations; (ii) each Western Plan which is
intended to be qualified within the meaning of Code section 401(a)
is so qualified and has received a favorable determination letter
as to its qualification and nothing has occurred to the knowledge
of the executive officers of Western, whether by action or failure
to act, which would cause the loss of such qualification; and (iii)
with respect to any Western Plan, no actions,
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suits or claims (other than routine claims for benefits in the
ordinary course) are pending or, to the knowledge of the executive
officers of Western, threatened. Western will promptly notify BJ in
writing of any pending or threatened claims arising between the
date hereof and the Closing Date (other than routine claims for
benefits in the ordinary course). No event has occurred and no
condition exists with respect to or relating to any Western Plan
that is reasonably likely to subject Western, either directly or by
reason of its affiliation with any member of its Controlled Group
(defined as any organization which is a member of a controlled
group of organizations within the meaning of Code sections 414(b),
(c), (m) or (o)), to any material tax,fine or penalty or other
liability imposed by ERISA, the Code or other applicable laws.
(d) (i) No Western Plan has incurred any "accumulated funding
deficiency" as such term is defined in ERISA section 302 and Code
section 412 (whether or not waived); (ii) to the knowledge of the
executive officers of Western, no event or condition exists which
could be deemed a reportable event within the meaning of ERISA
section 4043 with respect to any Western Plan that is subject to
Title IV of ERISA where the present value of accrued benefits
exceeds the fair market value of assets available for such benefits
by a material amount; (iii) Western and each member of its
Controlled Group have made all required premium payments when due
to the PBGC; (iv) neither Western nor any member of its Controlled
Group is subject to any liability to the PBGC for any plan
termination; (v) no amendment has occurred which has required or
could require Western or any member of its Controlled Group to
provide security pursuant to Code section 401(a)(29); and (vi)
neither Western nor any member of its Controlled Group has engaged
in a transaction which is reasonably likely to subject it to
liability under ERISA section 4069.
(e) Section 6.7(e) of the Western Disclosure Memorandum sets
forth, on a plan by plan basis, the present value of benefits
payable presently or in the future to present or former employees
of Western under each unfunded Western Plan which is a pension plan
within the meaning of Section 3(2) of ERISA.
(f) No Western Plan is a multiemployer plan (within the
meaning of Section 3(37) of ERISA) and neither Western nor any
member of its Controlled Group has incurred or is likely to incur
any liability to any multiemployer plan nor is engaged in a
transaction which could subject Western to liability under ERISA
section 4212(c).
(g) (i) No Western Plan, by its terms, provides for an
increase in the rate of accrual or the amount of benefits
thereunder on or after the Closing Date (other than increases due
to ordinary accruals or contributions under the plan), (ii) each
Western Plan may be amended or terminated under the terms of such
Western Plan without material obligation or liability (other than
those obligations and liabilities for which specific assets have
been set aside in a trust or other funding vehicle or reserved for
on Western's balance sheet); and (iii) except as specifically
contemplated by this Agreement, no Western Plan exists which could
result in the payment to any Western employee of any money or other
property or rights or accelerate or provide any other rights or
benefits to any Western employee as a result of the transaction
contemplated by this Agreement, whether or not such payment would
constitute a parachute payment within the meaning of Code section
280G.
Section 6.8 Labor Matters. (i) Neither Western nor any of its
Significant Subsidiaries is party to any collective bargaining
agreement or other material contract or agreement with any labor
organization or other representative of employees nor is any such
contract being negotiated; (ii) there is no material unfair labor
practice charge or complaint pending nor, to the knowledge of the
executive officers of Western, threatened, with regard to employees
of Western or any Significant Subsidiary; (iii) there is no labor
strike, material slowdown, material work stoppage or other material
labor controversy in effect, or, to the knowledge of the executive
officers of Western, threatened against Western or any of its
Significant Subsidiaries; (iv) as of the date hereof, no
representation question exists, nor to the knowledge of the
executive officers of Western are there any campaigns being
conducted to solicit cards from the employees of Western or any
Significant Subsidiary of Western to
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authorize representation by any labor organization; (v) neither
Western nor any Significant Subsidiary of Western is party to, or
is otherwise bound by, any consent decree with any governmental
authority relating to employees or employment practices of Western
or any Significant Subsidiary of Western; and (vi) Western and each
Significant Subsidiary of Western are in compliance with all
applicable agreements, contracts and policies relating to
employment, employment practices, wages, hours and terms and
conditions of employment of the employees except where failure to
be in compliance with each such agreement, contract and policy is
not, either singly or in the aggregate, reasonably likely to have
a Western Material Adverse Effect.
Section 6.9 Tax Matters. Each of Western and each of its
Significant Subsidiaries, and any consolidated, combined, unitary
or aggregate group for tax purposes of which Western or any of its
subsidiaries is or has been a member, has timely filed all material
Tax Returns required to be filed by it, has paid all Taxes shown
thereon to be due and has provided adequate reserves in its
financial statements for any Taxes that have not been paid but are
properly accruable under generally accepted accounting principles,
whether or not shown as being due on any returns. Except to the
extent that the inaccuracy of any of the following, individually or
in the aggregate, is not reasonably likely to have a Western
Material Adverse Effect, no claim for unpaid Taxes has become a
lien or encumbrance of any kind against the property of Western or
any of its Significant Subsidiaries or is being asserted against
Western or any of its Significant Subsidiaries; no audit of any Tax
Return of Western or any of its Significant Subsidiaries is being
conducted by a Tax authority; and no extension of the statute of
limitations on the assessment of any Taxes has been granted by
Western or any of its Significant Subsidiaries and is currently in
effect. Neither Western nor any of its Significant Subsidiaries has
made an election under Section 341(f) of the Internal Revenue Code.
Section 6.10 Environmental Matters. Except to the extent that
the inaccuracy of any of the following, individually or in the
aggregate, is not reasonably likely to have a Western Material
Adverse Effect, to the knowledge of the executive officers of
Western:
(i) Western and its subsidiaries hold, and are in
compliance with and have been in compliance with for the last
two years, all Environmental Permits, and are otherwise in
substantial compliance and have been in substantial compliance
for the last two years with, all applicable Environmental Laws
and there is no condition that is reasonably likely to prevent
or materially interfere prior to the Effective Time with
compliance by Western and its subsidiaries with Environmental
Laws;
(ii) no modification, revocation, reissuance, alteration,
transfer or amendment of any Environmental Permit, or any
review by, or approval of, any third party of any
Environmental Permit is required in connection with the
execution or delivery of this Agreement or the consummation by
Western of the transactions contemplated hereby or the
operation of the business of Western or any of its
subsidiaries on the Closing Date;
(iii) neither Western nor any of its subsidiaries has
received any Environmental Claim, nor has any Environmental
Claim been threatened against Western or any of its
subsidiaries;
(iv) neither Western nor any of its subsidiaries has
entered into, agreed to or is subject to any outstanding
judgment, decree, order or consent arrangement with any
governmental authority under any Environmental Laws, including
without limitation those relating to compliance with any
Environmental Laws or to the investigation, cleanup,
remediation or removal of Hazardous Materials;
(v) there are no circumstances that are reasonably
likely to give rise to liability under any agreements with any
person pursuant to which Western or any subsidiary of Western
would be required to defend, indemnify, hold harmless, or
otherwise be responsible for any
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violation by or other liability or expense of such person, or
alleged violation by or other liability or expense of such
person, arising out of any Environmental Law; and
(vi) there are no other circumstances or conditions that
are reasonably likely to give rise to liability of Western or
any of its subsidiaries under any Environmental Laws.
Section 6.11 Litigation. Except as disclosed prior to the date
hereof in Western SEC Documents, there is no suit, action,
investigation or proceeding pending or, to the knowledge of the
executive officers of Western, threatened against Western or any of
its subsidiaries at law or in equity before or by any federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind, that is reasonably likely to
have a Western Material Adverse Effect or, with respect to such
matters that are pending or threatened as of the date hereof,
materially impair the ability of Western to perform its obligations
hereunder and there is no judgment, decree, injunction, rule or
order of any court, governmental department, commission, board,
bureau, agency, instrumentality or arbitrator to which Western or
any of its subsidiaries is subject that is reasonably likely to
have a Western Material Adverse Effect or, with respect to such
items that are outstanding and applicable as of the date hereof,
materially impair the ability of Western to perform its obligations
hereunder.
Section 6.12 Governmental Licenses and Permits; Compliance
with Law. Except as disclosed prior to the date hereof in the
Western SEC Documents, since December 31, 1993 neither Western nor
any of its Significant Subsidiaries has received notice of any
revocation or modification of any federal, state, local or foreign
governmental license, certification, tariff, permit, authorization
or approval the revocation or modification of which has had or is
reasonably likely to have a Western Material Adverse Effect. To the
knowledge of the executive officers of Western, the conduct of the
business of each of Western and its subsidiaries complies with all
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees or arbitration awards applicable thereto, except for
violations or failures to comply, if any, that, individually or in
the aggregate, are not reasonably likely to have a Western Material
Adverse Effect.
Section 6.13 Amendment to Western Rights Agreement. (a) The
Board of Directors of Western has taken all necessary action to
amend the Western Rights Agreement so that none of the execution
and delivery of this Agreement, the conversion of shares of Western
Common Stock into the right to receive Merger Consideration in
accordance with Article III of this Agreement, and the consummation
of the Merger or any other transaction contemplated hereby will
cause (i) the Western Rights issued pursuant to the Western Rights
Agreement to become exercisable under the Western Rights Agreement,
(ii) BJ or any of BJ's direct or indirect subsidiaries to be deemed
an "Acquiring Person" (as defined in the Western Rights Agreement),
(iii) any such event to be deemed a "Flip-over Transaction or
Event" (as defined in the Western Rights Agreement) or (iv) the
"Stock Acquisition Date" (as defined in the Western Rights
Agreement) to occur upon any such event.
(b) The "Expiration Time" (as defined in the Western Rights
Agreement) of the Western Rights will occur immediately prior to
the Effective Time.
(c) The "Separation Time" (as defined in the Western Rights
Agreement) has not occurred.
Section 6.14 Required Vote of Western Stockholders. The
affirmative vote of the holders of not less than 66-2/3% of the
outstanding shares of Western Common Stock is required to adopt
this Agreement and approve the Merger and the other transactions
contemplated hereby. No other vote of the stockholders of Western
is required by law, the Restated Certificate of Incorporation or
Bylaws of Western or otherwise to adopt this Agreement and approve
the Merger and the other transactions contemplated hereby.
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Section 6.15 Western Action. The Board of Directors of Western
(at a meeting duly called and held on November 17, 1994)
unanimously (a) determined that the Merger is fair to and in the
best interests of Western and its stockholders, (b) approved this
Agreement and the Merger in accordance with the Delaware
Corporation Law, (c) resolved to recommend approval and adoption of
this Agreement and Merger by Western's stockholders and (d)
directed that this Agreement be submitted to Western's
stockholders.
Section 6.16 Opinion of Financial Advisor. On the date hereof,
Western has received the opinion of Goldman, Sachs & Co. to the
effect that the consideration to be received in the Merger by
Western's stockholders is fair to such stockholders.
Section 6.17 Brokers and Finders. Except for Goldman, Sachs &
Co. and Alexander Corporate Financial Consulting, Inc., no broker,
finder or investment banker is entitled to any brokerage, finder's
or other fee or commission in connection with this Agreement or the
Merger based upon arrangements made by or on behalf of Western.
Except as expressly set forth in this Agreement, no valid claim
against Western or, to the knowledge of the executive officers of
Western, against BJ or BJ Sub exists for payment of any fee or
other compensation as a result of any of the transactions
contemplated hereby.
Section 6.18 Intellectual Property. Western and each of its
subsidiaries owns, or is licensed to use (in each case, clear of
any material liens or other encumbrances) all patents, trademarks,
trade names, copyrights, technology, know-how and processes used in
or necessary for the conduct of its business as currently conducted
which are material to the business of Western. To the knowledge of
the executive officers of Western, the use of such patents,
trademarks, trade names, copyrights, technology, know-how and
processes by Western and its subsidiaries does not infringe on the
rights of any person, subject to such claims and infringements as
do not, in the aggregate, give rise to any liability that is
reasonably likely to have a Western Material Adverse Effect.
ARTICLE VII
CONDUCT OF BUSINESS PENDING THE MERGER
Section 7.1 Conduct of Business by Western Pending the Merger.
Prior to the Effective Time, unless BJ shall otherwise consent in
writing (it being understood that BJ must act in good faith
whenever it withholds such consent), Western shall, and shall cause
its subsidiaries to, carry on their respective businesses only in
the ordinary course and consistent with past practice and, to the
extent consistent therewith and with the specific terms of this
Agreement, use all commercially reasonable efforts to preserve
intact their current business organizations, keep available the
services of their current employees and preserve their
relationships with customers, suppliers and others having business
dealings with them. Without limiting the generality of the
foregoing, prior to the Effective Time, except as expressly
contemplated by this Agreement or unless BJ shall otherwise agree
in writing, Western shall not and shall cause each of its
subsidiaries not to:
(i) (A) sell or pledge or otherwise encumber or agree to
sell or pledge any stock owned by it in any direct or indirect
subsidiary of Western; (B) redeem, purchase or otherwise
acquire any shares of, or any options, warrants or rights of
any kind to acquire any shares of or any securities
exercisable or exchangeable for or convertible into shares of,
the capital stock of Western or any of its subsidiaries, other
than the extinguishment of options outstanding as of the date
hereof upon the exercise of such options and other than
purchases of Western Common Stock by the trustee under the
Western Retirement Savings Plan; (C) amend the Restated
Certificate of Incorporation or Bylaws of Western or the
certificate of incorporation or bylaws or other governing
documents of any of Western's subsidiaries; (D) split, combine
or reclassify any of Western's capital stock or the capital
stock of any of Western's subsidiaries; or (E) declare, set
aside or pay any dividend on, or make any other distributions
in respect of, any of Western's
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capital stock or the capital stock of any of Western's
subsidiaries, other than dividends and distributions by a
direct or indirect subsidiary of Western to its stockholder or
stockholders;
(ii) (A) issue, authorize the issuance of or agree to
issue any shares of, or any options, warrants or rights of any
kind to acquire any shares of, or any securities exercisable
or exchangeable for or convertible into shares of, Western's
capital stock or the capital stock of any of Western's
subsidiaries (except to issue shares of Western Common Stock
(including associated Western Rights) upon the due exercise of
Western Options, or the due conversion of Western Convertible
Debentures, outstanding on the date hereof or the due exercise
of outstanding Western Rights) or issue or agree to issue any
other equity securities; (B) acquire or dispose of any
business or line of business or any assets, other than in the
ordinary course of business and consistent with past practice
(or pursuant to the agreement dated November 1, 1994 with
respect to the sale of the Alaskan Star Rig), or engage in any
negotiations with any person or entity concerning any such
transaction (other than negotiations with respect to the
possible sale of offshore drilling rigs); (C) make any (1)
capital expenditures which have not been expressly provided
for in the list of currently authorized financial expenditures
as of October 31,1994 (a copy of which has been delivered to
BJ), or (2) capital expenditures in excess of $3,000,000 in
the fourth calendar quarter of 1994 or in any calendar quarter
of 1995, in addition to those permitted by clause (1) above;
(D) enter into any other transaction not in the ordinary
course of business and consistent with past practice; (E)
amend or modify any of the terms of any Western Option or
grant any stock option, stock appreciation rights or stock
bonuses; (F) amend or modify the Western Rights Agreement or
redeem any Western Rights; or (G) merge or consolidate with
another corporation, other than the merger of a wholly-owned
subsidiary of Western with and into Western or another
wholly-owned subsidiary;
(iii) (A) lease, license, mortgage or otherwise encumber
or subject to any consensual lien any material assets other
than in the ordinary course of business and consistent with
past practice; (B) incur any indebtedness for borrowed money
(other than letters of credit entered into, or short-term
borrowings for working capital purposes incurred, in each case
in the ordinary course of business and consistent with past
practice) or guarantee any such indebtedness of another person
or entity; or (C) make any loans, advances or capital
contributions to, or investments in, any other person or
entity, other than to Western or any direct or indirect
subsidiary of Western, other than as required under existing
agreements with third parties and other than in connection
with the relocation of employees under existing Western
policies and consistent with past practice;
(iv) (A) pay, discharge or satisfy any material claims,
liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), except for the payment,
discharge or satisfaction of its liabilities or its
obligations in the ordinary course of business or in
accordance with their terms as in effect on the date hereof;
(B) adopt a plan of complete or partial liquidation or
resolutions providing for or authorizing such a liquidation or
a dissolution, restructuring, recapitalization or
reorganization, other than a plan or resolution authorizing
the dissolution of a subsidiary of Western with less than
$100,000 in assets; (C) enter into any collective bargaining
agreement, successor collective bargaining agreement or
amended collective bargaining agreement; (D) change any
accounting principle used by it, except for such changes
required to be implemented prior to the Effective Time
pursuant to generally accepted accounting principles or rules
of the Commission; or (E) settle or compromise any litigation
brought against it other than settlements or compromises of
any litigation where the amount paid in settlement or
compromise (including without limitation the cost to Western
and its subsidiaries of complying with any provision of such
settlement or compromise other than cash payments) does not
exceed $500,000, exclusive of amounts covered by insurance;
(v) (A) enter into any new, or amend any existing,
severance agreement arrangement (other than settlement
arrangements with employees other than officers in
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accordance with past practice and pursuant to which Western
obtains certain waivers of rights from such employees),
deferred compensation arrangement or employment agreement with
any current officer, director or employee, (B) adopt any new,
or amend any existing, incentive, retirement or welfare
benefit arrangements, plans or programs for the benefit of
current, former or retired employees of Western and its
subsidiaries and their respective predecessors that would
increase the cost of aggregate benefits available by more than
1% (other than amendments required by law or to maintain the
tax qualified status of such plans under the Code), or (C)
grant any increases in employee compensation, other than in
the ordinary course or pursuant to promotions, in each case
consistent with past practice (which shall include normal
individual periodic performance reviews and related
compensation and benefit increases and bonus payments and
awards under existing plans and forgiveness of employee
indebtedness incurred in connection with relocation loans made
under existing Western policies); or
(vi) authorize or enter into any agreement to do any of
the foregoing.
ARTICLE VIII
ADDITIONAL AGREEMENTS
Section 8.1 Access and Information. Subject to the
Confidentiality Agreements (as defined in Section 10.2), upon
reasonable notice, Western and BJ shall each afford to the other
and to the other's accountants, counsel and other authorized
representatives reasonable access during normal business hours
throughout the period prior to the Effective Time to all of its
properties, books, contracts, commitments and records (including
but not limited to tax returns) and, during such period, each shall
furnish promptly to the other (i) a copy of each report and other
document filed by it pursuant to the requirements of federal or
state securities laws and (ii) all other information concerning its
business, properties and personnel as such other party may
reasonably request, provided that the foregoing shall not require
Western or BJ to permit any inspection, or to disclose any
information, that in the reasonable judgment of Western or BJ, as
the case may be, would result in the disclosure of any trade
secrets of third parties or violate any obligation of Western or
BJ, as the case may be, with respect to confidentiality if Western
or BJ, as the case may be, shall have used reasonable efforts to
obtain the consent of such third party to such inspection or
disclosure. All requests for information made pursuant to this
Section 8.1 shall be directed to an executive officer of Western or
BJ or such person as may be designated by either of their
respective officers, as the case may be. No investigation pursuant
to this Section 8.1 shall affect any representation or warranty in
this Agreement of any party hereto or any condition to the
obligations of the parties hereto.
Section 8.2 Stock Exchange Listing. BJ shall use its best
efforts to list on the NYSE, prior to the Effective Time, subject
to official notice of issuance, (a) the BJ Common Stock (including
associated BJ Purchase Rights) and the BJ Common Stock issuable
upon exercise of the BJ Warrants to be issued pursuant to the
Merger, and (b) the BJ Warrants to be issued pursuant to the
Merger. If the BJ Warrants are not so listed on the NYSE, BJ shall
use its best efforts to have the BJ Warrants listed on NASDAQ.
Section 8.3 Stockholders' Approval. Each of BJ and Western
shall take, in accordance with applicable law and their respective
certificates of incorporation and bylaws, all action necessary to
convene a meeting of its stockholders (collectively, the
"Stockholders Meetings") as promptly as practicable after the
registration statement on Form S-4 to be filed with the Commission
by BJ in connection with the issuance of shares of BJ Common Stock
(including associated BJ Purchase Rights) and BJ Warrants
(including shares of BJ Common Stock issuable upon the exercise
thereof) in the Merger (the "S-4") is declared effective for the
purpose of voting, in the case of Western, to adopt this Agreement
and approve the Merger and the other transactions contemplated
hereby and, in the case of BJ, to approve this Agreement and the
issuance of BJ Common Stock and BJ Warrants in the
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Merger and, in each case, such other matters as may be appropriate
at such meetings and are consented to in writing by BJ and Western
(which consent shall not be unreasonably withheld), provided that
no proxy statement for use in connection with the stockholders'
meeting of each of BJ and Western referred to in Section 8.3 hereof
(the "Joint Proxy Statement") shall be mailed by Western or BJ
without the prior approval of the other party hereto. Each of BJ
and Western will use its best efforts to hold such meetings no
later than April 30, 1995, unless otherwise agreed by the parties
hereto, and will use its best efforts to hold such meetings on the
same day. Unless otherwise required by applicable law because of
the fiduciary duties of the directors of Western to its
stockholders as determined by such directors in good faith after
consultation with and based upon the advice of Sullivan & Cromwell,
as legal counsel to Western, the Board of Directors of Western
shall recommend to its stockholders approval of the transactions
contemplated by this Agreement, Western shall use its best efforts
to solicit from its stockholders proxies in favor of the adoption
of this Agreement and the approval of the Merger and the other
transactions contemplated hereby, and Western shall not take any
actions that are inconsistent with such best efforts obligation. BJ
shall recommend to its stockholders approval of the transactions
contemplated by this Agreement, shall use its best efforts to
solicit from its stockholders proxies in favor of the approval of
this Agreement and the issuance of the Stock Consideration and
Warrant Consideration in the Merger as required by NYSE Rule
312.05, and shall not take any actions that are inconsistent with
such best efforts obligation. Each of Western and BJ shall take all
other action necessary or advisable to secure the vote or consent
of its stockholders required by Delaware Corporation Law or NYSE
rules, as the case may be, to obtain such approvals. Western will
cause its transfer agent to make stock transfer records relating to
Western available to the extent reasonably necessary to effectuate
the intent of this Agreement.
Section 8.4 No Solicitation. (a) Except with respect to BJ and
its affiliates, on or after the date hereof, Western shall not, and
shall cause its subsidiaries and its and its subsidiaries'
officers, directors, affiliates, agents and representatives
(including without limitation any investment banker, attorney or
accountant retained by Western or any of its subsidiaries), and
shall use its best efforts to cause its and its subsidiaries'
employees not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making of any proposal with
respect to an Alternative Transaction (as hereinafter defined),
participate in any negotiations concerning, or provide to any other
person any information or data relating to Western or its
subsidiaries for the purpose of, or have any substantive
discussions with, any person relating to, or otherwise cooperate
with or assist or participate in, or facilitate, any inquiries or
the making of any proposal which constitutes, or would reasonably
be expected to lead to, any effort or attempt by any other person
to seek to effect an Alternative Transaction, or agree to or
endorse any Alternative Transaction; provided, however, that
nothing contained in this Section 8.4 shall prohibit Western or its
Board of Directors from taking and disclosing to the stockholders
of Western a position with respect to any such Alternative
Transaction that, in the judgment of the Board of Directors of
Western, as determined in good faith by such directors after
consultation with and based upon the advice of Sullivan & Cromwell,
as counsel to Western, is required by applicable law; and provided,
further, that (x) the Board of Directors of Western may (i) upon
the unsolicited request of a third party which executes a
confidentiality agreement with Western in customary form, furnish
information or data (including without limitation confidential
information or data relating to Western or its subsidiaries) in
order to allow such third party to consider making a proposal with
respect to, or entering into, an Alternative Transaction involving
such third party and Western, (ii) participate in negotiations or
have substantive discussions with a third party who makes an
unsolicited, bona fide proposal regarding an Alternative
Transaction, and (iii) in connection therewith, cooperate with or
assist or facilitate such third party in its attempt to effect such
Alternative Transaction, and (y) following receipt of an
unsolicited, bona fide proposal from a third party regarding an
Alternative Transaction, the Board of Directors of Western may
withdraw or modify its recommendation referred to in Section 8.3,
in each case to the extent that the Board of Directors of Western
determines in good faith, after consultation with and based upon
the advice of Sullivan & Cromwell, as counsel to Western, that such
action may be required in order for the Board of Directors to act
in a manner that is consistent with its fiduciary obligations under
applicable law.
A-25
Western shall promptly advise BJ of any such request or proposal
that Western may receive. Prior to taking any such action, if
Western intends to participate in any such discussions or
negotiations or provide any such information to any such third
party, Western shall give reasonable prior notice to BJ. of each
such action. Nothing in this Section 8.4 shall (A) permit Western
to terminate this Agreement or (B) permit Western to enter into any
written agreement with respect to an Alternative Transaction during
the term of this Agreement (it being agreed that during the term of
this Agreement Western shall not enter into any written agreement
with any person that provides for, or in any way facilitates, an
Alternative Transaction, other than a confidentiality agreement in
the form referred to above), it being understood that Section
10.1(f) sets forth the rights of Western to terminate this
Agreement in the circumstances specified in clause (y) above.
(b) Western will immediately, and will cause its subsidiaries
and its and its subsidiaries' officers, directors, agents and
representatives (including without limitation any investment
banker, attorney or accountant retained by Western or any of its
subsidiaries), and will use its best efforts to cause its and its
subsidiaries' employees, to immediately, cease and cause to be
terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any possible
Alternative Transactions.
(c) Without limiting the foregoing, it is understood that any
violation of the restrictions set forth in the first sentence of
Section 8.4(a) by any officer or director or authorized employee,
agent or representative of Western or any of its subsidiaries
(including, without limitation, any investment banker, attorney or
accountant retained by Western or any of its subsidiaries), or
otherwise shall be deemed to be a breach of Section 8.4(a) by
Western.
(d) As used herein, "Alternative Transaction" means (i) any
merger, consolidation or other business combination transaction
involving Western in which another corporation, partnership,
person, other entity or group (as defined in Section 13(d)(3) of
the Exchange Act) would acquire beneficial ownership of at least
20% of the aggregate voting power of all voting securities of
Western or the Surviving Corporation, as the case may be; (ii) any
tender offer or exchange offer for any securities of Western which,
if consummated, would result in another corporation, partnership,
person, other entity or group (as defined in Section 13(d)(3) of
the Exchange Act) becoming the beneficial owner of at least 20% or
more of the aggregate voting power of all voting securities of
Western; (iii) any sale or other disposition of assets of Western
or any of its subsidiaries (excluding the offshore drilling rigs)
in a single transaction or in a series of related transactions if
the fair market value of such assets exceeds 20% of the aggregate
fair market value of the assets of Western and its subsidiaries
taken as a whole before giving effect to such sale or other
disposition; (iv) the adoption by Western of a plan of liquidation,
the declaration or payment by Western of an extraordinary dividend
on any of its shares of capital stock or the effectuation by
Western of a recapitalization or other type of transaction which
would involve either a change in Western's outstanding capital
stock or a distribution of assets of any kind to the holders of
such capital stock; or (v) the repurchase by Western or any of its
subsidiaries of shares of Western Common Stock representing at
least 20% or more of the aggregate voting power of all voting
securities of Western.
Section 8.5 Antitrust Filing and Divestitures. (a) Within two
Trading Days after the date hereof, Western and BJ shall file
notification and report forms under the Hart Scott Act with the
Federal Trade Commission (the "FTC") and the Antitrust Division of
the Department of Justice (the "Antitrust Division") and shall
promptly make all other necessary, proper or advisable filings with
the applicable federal, state or local government or any court,
administrative agency or commission or other governmental authority
or agency, domestic or foreign (a "Governmental Entity"), related
to the transactions contemplated by this Agreement and shall use
their best efforts to respond as promptly as practicable to all
inquiries received from the FTC or the Antitrust Division or such
other Governmental Entities for additional information or
documentation. Each of the parties hereto agrees to furnish the
others with copies of all correspondence, filings and
communications (and memoranda setting forth the substance thereof)
between it and its affiliates and their respective representatives,
A-26
on the one hand, and the FTC the Antitrust Division or any other
Governmental Entity or members of their respective staffs, on the
other hand, with respect to this Agreement and the transactions
contemplated hereby. Each party hereto agrees to furnish the others
with such necessary information and reasonable assistance as such
other parties and their respective affiliates may reasonably
request in connection with their preparation of necessary filings,
registrations or submissions of information to any Governmental
Entities, including without limitation any filings necessary under
the provisions of the Hart Scott Act.
(b) Without limiting the generality of the undertakings
pursuant to this Section 8.5 and Section 8.14, BJ shall promptly
take or cause to be taken all actions as it may determine to be
reasonably appropriate in order to avoid the commencement of a
proceeding by any Governmental Entity to restrain, enjoin or to
otherwise prohibit consummation of the Merger so as to permit
consummation of the Merger on a schedule as close as possible to
that contemplated by this Agreement.
Section 8.6 Indemnification and Insurance. (a) From and after
the Effective Time, BJ agrees that it or the Surviving Corporation
will indemnify and hold harmless each present and former director
and officer of Western and its subsidiaries (the "Indemnified
Parties") against any and all costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in
connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to matters existing or
occurring at or prior to the Effective Time, whether asserted or
claimed prior to, at or after the Effective Time, to the fullest
extent allowed by law (and BJ or the Surviving Corporation will
also advance expenses as incurred to the fullest extent permitted
under applicable law provided the person to whom expenses are
advanced provides an undertaking to repay such advances if it is
ultimately determined that such person is not entitled to
indemnification).
(b) Any Indemnified Party wishing to claim indemnification
under paragraph (a) of this Section 8.6, upon learning of any such
claim, action, suit, proceeding or investigation, shall promptly
notify BJ and the Surviving Corporation thereof, but the failure to
so notify shall not relieve BJ or the Surviving Corporation of any
liability it may have to such Indemnified Party except to the
extent that such failure materially prejudices the indemnifying
party. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time),
(i) BJ or the Surviving Corporation shall have the right to assume
the defense thereof (which it shall, in cooperation with the
Indemnified Parties, vigorously defend) and neither BJ nor the
Surviving Corporation shall be liable to such Indemnified Parties
for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Parties in connection
with the defense thereof, except that if neither BJ nor the
Surviving Corporation elects to assume such defense or there is a
conflict of interest between BJ or the Surviving Corporation, on
the one hand, and the Indemnified Parties, including situations in
which there are one or more legal defenses available to the
Indemnified Party that are different from or additional to those
available to BJ or the Surviving Corporation, the Indemnified
Parties may retain counsel satisfactory to them, and BJ or the
Surviving Corporation shall pay all reasonable fees and expenses of
such counsel for the Indemnified Parties promptly as statements
therefor are received; provided, however, that neither BJ nor the
Surviving Corporation shall, in connection with any one such action
or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable
for the fees and expenses of more than one separate firm of
attorneys at any time for all Indemnified Parties except to the
extent that local counsel, in addition to such parties' regular
counsel, is required in order to effectively defend against such
action or proceeding, (ii) the Indemnified Parties will cooperate
in the defense of any such matter and (iii) neither BJ nor the
Surviving Corporation shall be liable for any settlement effected
without its prior written consent, and provided, further, that
neither BJ nor the Surviving Corporation shall have any obligation
hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall ultimately determine, and such determination
shall have become
A-27
final, that the indemnification of such Indemnified Party in the
manner contemplated hereby is prohibited by applicable law.
(c) For a period of three years after the Effective Time, the
Surviving Corporation shall use its best efforts to maintain in
effect the current policies of directors' and officers' liability
insurance maintained by Western (the "Current D&O Policy")
(provided that the Surviving Corporation may substitute therefor
policies of at least the same coverage and amounts containing terms
and conditions which are no less advantageous ("Substitute
Coverage") and will, to the extent available, provide such
Substitute Coverage if the Current D&O Policy is not available)
with respect to claims arising from facts or events occurring at or
prior to the Effective Time; provided, however, if the Current D&O
Policy expires, is terminated or canceled during such three year
period and Substitute Coverage cannot be obtained, the Surviving
Corporation shall use its best efforts to obtain as much insurance
as can be obtained for the remainder of such period up to a maximum
of the coverage amount of the Current D&O Policy; provided further,
that in no event shall the Surviving Corporation be required to
expend for insurance premiums pursuant to this Section 8.6(b) more
than 150% of the current annual premiums paid by Western for such
insurance (which premiums Western represents and warrants to be
$421,000 in the aggregate).
(d) If the Surviving Corporation or any of its successors or
assigns (i) shall consolidate with or merge into any other
corporation or entity and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) shall
transfer all or substantially all of its properties and assets to
any individual, corporation or other entity, then and in each such
case, proper provisions shall be made so that the successors and
assigns of the Surviving Corporation shall assume all of the
obligations of the Surviving Corporation set forth in this Section
8.6.
(e) The provisions of this Section 8.6 are intended to be for
the benefit of, and shall be enforceable by, each of the directors
and officers of Western who are the beneficiaries of the
indemnification arrangements specified herein and their heirs and
their representatives.
Section 8.7 Amendment of Western Plans. Western shall take
such action as is necessary to amend, as of the Effective Time,
each Western Plan providing for the issuance of, or related to, the
securities of Western or the Surviving Corporation to provide that
on and after the Effective Time, no option or other right shall be
outstanding to acquire any security of Western or the Surviving
Corporation.
Section 8.8 Employee Arrangements. (a) The Surviving
Corporation agrees that, during the period commencing at the
Effective Time and ending on the first anniversary thereof, the
employees of Western will continue to be provided with benefits
under employee benefit plans that are no less favorable in the
aggregate than those currently provided by Western to such
employees; provided, however, that nothing herein shall (i) prevent
the amendment or termination of any Western Plan, (ii) require the
Surviving Corporation to provide or permit investment in the
securities of BJ, BJ Sub, Western or the Surviving Corporation, or
(iii) limit or restrict the ability of BJ,Western or the Surviving
Corporation to terminate the employment of any officer or employee.
(b) Notwithstanding anything to the contrary in Section
8.8(a), BJ will, and will cause the Surviving Corporation to honor
all employee benefit obligations to current and former employees
and directors under the Western Plans, under the Retirement Plan
for Non-Employee Directors and, to the extent set forth in Western
SEC Documents or the Western Disclosure Memorandum, the Special
Severance Policy in existence on the date hereof and all employment
or severance agreements or indemnification agreements entered into
by Western or adopted by the Board of Directors of Western prior to
the date hereof; provided, however, that nothing shall prevent BJ
or the Surviving Corporation from taking any action with respect to
such plans, obligations or agreements or refraining from taking any
such action which is permitted or provided for under the terms
thereof.
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(c) Employees of the Surviving Corporation shall be given
credit for all service with Western and its subsidiaries under all
employee benefit plans, programs and policies of the Surviving
Corporation or BJ in which they become participants for all
purposes thereunder; provided, however, that employees of the
Surviving Corporation who become participants in a defined benefit
pension plan sponsored by BJ or in a defined benefit pension plan
sponsored by the Surviving Corporation which is adopted on or after
the Effective Time shall not be given credit for benefit accrual
purposes to the extent such credit would result in a duplication of
benefits under more than one defined benefit pension plan.
(d) A special committee of the Board of Directors of BJ shall
be established (the "Special Committee") consisting of two current
outside directors of BJ and two current outside directors of
Western who will become directors of BJ after the Closing Date as
specified in Section 8.16. Except as otherwise specified in the
last sentence of this Section 8.8(d), the provisions of this
Section 8.8 shall be enforceable exclusively by the Special
Committee for the benefit of the officers and employees of the
Surviving Corporation and its subsidiaries who were officers and
employees of Western and its subsidiaries prior to the Effective
Time. If any such officer or employee has any claim that the
provisions of this Section 8.8 have not been complied with, such
officer or employee shall be required to submit such claim to the
Special Committee, and any decision rendered by a majority of the
members of the Special Committee shall be binding upon such officer
or employee and shall be dispositive of such claim for all purposes
whatsoever. If (and only if) the Special Committee is unable to
reach a majority decision with respect to the disposition of such
claim, such officer or employee may pursue his claim in any other
appropriate manner.
Section 8.9 Publicity. Except with respect to matters
concerning an Alternative Transaction, the parties hereto shall
consult with each other concerning any proposed press release or
public announcement pertaining to the transactions contemplated by
this Agreement and shall use their best efforts to agree upon the
text of any such press release or the making of such public
announcement prior to the public dissemination thereof and prior to
making any filings with any Governmental Entity or national
securities exchange with respect thereto, except as may be required
by law or by obligations pursuant to any listing agreement with or
rules of any national securities exchange.
Section 8.10 Fees and Expenses. (a) Except as provided in
Sections 8.10(b) through Section 8.10(g), whether or not the Merger
is consummated, all costs and expenses incurred in connection with
the Merger, this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such cost or expense.
(b) If (i) Western terminates this Agreement pursuant to
Section 10.1(f); (ii) BJ terminates this Agreement pursuant to
Section 10.1(e)(i); or (iii) either Western or BJ terminates this
Agreement pursuant to Section 10.1(h) and, prior to such failure of
Western stockholders to adopt this Agreement and approve the
Merger, another party shall have made a proposal to effectuate an
Alternative Transaction and such proposal shall have been publicly
announced, then in any such event Western shall pay to BJ, in
immediately available funds, (A) on the date on which such
Alternative Transaction is consummated, $16,000,000 (the "Topping
Fee") and (B) within one Trading Day after requested by BJ
(accompanied by reasonably detailed documentation) from time to
time, all of BJ's Expenses up to a maximum payment pursuant to this
clause (B) of $3,500,000. The term "BJ's Expenses" shall include
all out-of-pocket expenses and fees (including without limitation
fees and expenses payable to all banks, investment banking firms
and other financial institutions and their respective agents and
counsel for arranging or providing, or agreeing to arrange or
provide, financing for, or financing advice with respect to, the
Merger and all fees of counsel, accountants, experts and
consultants to BJ or BJ Sub) actually incurred by BJ and BJ Sub or
on their behalf in connection with the consummation of all
transactions contemplated by this Agreement, including the Merger.
(c) If the provisions of Section 8.10(b) are not applicable
and BJ terminates this Agreement pursuant to Section 10.1(e) (ii),
then Western shall pay to BJ, within one Trading Day after
requested
A-29
by BJ (accompanied by reasonably detailed documentation) from time
to time, all of BJ's Expenses up to a maximum payment pursuant to
this Section 8.10(c) of $3,500,000.
(d) If Western terminates this Agreement pursuant to Section
10.1(g) and if (and only if) such termination occurs on or after
the date of consummation of the BJ Alternative Transaction which
gave rise to such right of termination under Section 10.1(g) then
in such event BJ shall pay to Western, in immediately available
funds, (i) on the date of such termination, $16,000,000 and (ii)
within one Trading Day after requested by Western (accompanied by
reasonably detailed documentation) from time to time, all of
Western's Expenses up to a maximum payment pursuant to this clause
(ii) of $3,500,000. The term "Western's Expenses" shall include all
out-of-pocket expenses and fees (including without limitation fees
and expenses payable to all investment banking firms, counsel,
accountants, experts and consultants to Western) actually incurred
by Western or on its behalf in connection with the consummation of
the transactions contemplated by this Agreement, including the
Merger.
(e) If either BJ or Western terminates this Agreement
pursuant to Section 10.1(j), then BJ shall pay to Western, within
one Trading Day after requested by Western (accompanied by
reasonably detailed documentation) from time to time, all of
Western's Expenses up to a maximum payment pursuant to this Section
8.10(e) of $3,500,000; provided, however, that BJ shall pay to
Western a termination fee of $20,000,000 and shall not make any
additional payment to Western in reimbursement of Western's
Expenses, if either BJ or Western terminates this Agreement
pursuant to Section 10.1(j) and both of the following conditions
shall have been satisfied: (i) the meeting of BJ stockholders shall
have been held subsequent to the receipt of the first Antitrust
Termination Notice (as defined in Section 8.10(f)) sent by Western
at the end of the 100-day period referred to in Section 10.1(l)
(the "Antitrust Approval Period") (without regard to any extensions
thereof) and (ii) BJ shall have elected to extend the Antitrust
Approval Period pursuant to clause (i) of Section 8.10(f) rather
than pursuant to clause (ii) of Section 8.10(f).
(f) If either BJ or Western terminates this Agreement
pursuant to Sections 10.1(i) or 10.1(l) (but only if, in the case
of a termination pursuant to Section 10.1(i), the action giving
rise to an order or injunction sought to enjoin or otherwise
prohibit the Merger for alleged violations of the federal or state
antitrust laws), then BJ shall pay to Western a termination fee of
$20,000,000 within five Trading Days after written notice of
termination under Sections 10.1(i) or 10.1(l) (the "Antitrust
Termination Notice") is received by BJ from Western or received by
Western from BJ; provided, however, that BJ shall have the option
to require Western to rescind any such Antitrust Termination Notice
sent by Western under Section 10.1(l) if either of the conditions
set forth below shall have been satisfied, in which event such
Antitrust Termination Notice shall be rescinded and the Antitrust
Approval Period shall be deemed to have been changed to 130 days:
(i) if at the time such Antitrust Termination Notice is
received, BJ has been engaged in active and continuous
negotiations with the Antitrust Division or the FTC with
respect to the Consent Decree Final Agreement (as defined in
Section 10.1(l)), provided that prior to the tenth day after
receipt by BJ of the Western Compliance Certificates (as
defined in Section 10.1(l)), BJ and its outside counsel each
delivered to Western certificates that to the best of their
knowledge BJ is in "substantial compliance" with the Antitrust
Division's or FTC's "second request" for information from BJ
under the Act, or
(ii) if the foregoing clause (i) is not applicable, if BJ
shall have paid a fee of $2,500,000 to Western on or prior to
the fifth Trading Day after BJ's receipt of such Antitrust
Termination Notice;
provided, further, that at the end of such extended Antitrust
Approval Period BJ shall have the option to extend the Antitrust
Approval Period for a second 30-day period by (x) paying a fee of
$5,000,000 to Western if the Antitrust Approval Period was extended
pursuant to clause (i) above, or (y) paying an
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additional fee of $2,500,000 to Western if the Antitrust Approval
Period was extended pursuant to clause (ii) above, in which event
upon such payment the Antitrust Approval Period shall be deemed to
have been changed to 160 days.
(g) If either BJ or Western terminates this Agreement
pursuant to Section 10.1(m), then BJ shall pay to Western a
termination fee of $20,000,000; provided, however, that if
Western's stockholders shall fail to have approved the Merger or
BJ's stockholders shall fail to have approved the issuance of BJ
Common Stock and BJ Warrants in the Merger and this Agreement at a
meeting of stockholders held to vote thereon and BJ is not in
breach of its obligations contained in this Agreement, BJ shall
have no obligation to pay any termination fee to Western pursuant
to this Section 8.10(g).
Section 8.11 Preparation of Form S-4 and Joint Proxy
Statement. As promptly as practicable following the date of this
Agreement, Western and BJ shall prepare and file with the
Commission the Joint Proxy Statement, and BJ shall prepare and file
with the Commission the S-4, in which the Joint Proxy Statement
will be included. Each of Western and BJ shall use its best efforts
to have the S-4 declared effective under the Securities Act as
promptly as practicable after such filing. Western will use its
best efforts to cause the Joint Proxy Statement to be mailed to
Western's stockholders, and BJ will use its best efforts to cause
the Joint Proxy Statement to be mailed to BJ's stockholders, in
each case as promptly as practicable after the S-4 is declared
effective under the Securities Act. BJ shall also take any action
required to be taken under any applicable state securities laws in
connection with the issuance of BJ Common Stock (including
associated BJ Purchase Rights) and BJ Warrants (including the BJ
Common Stock issuable upon exercise thereof) in the Merger, and
Western shall furnish all information concerning Western and the
holders of Western Common Stock as may be reasonably requested in
connection with any such action. BJ, BJ Sub and Western each
covenant and agree that the information provided and to be provided
by such party for inclusion or incorporation by reference in the
S-4 shall not, at the time the S-4 becomes effective and on the
date of each Stockholders Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. Western, BJ and BJ Sub each agree to correct
promptly any information provided by it for use in the S-4 which
shall have become false or misleading prior to the times referred
to above.
Section 8.12 Affiliates. Prior to the Closing Date, Western
shall deliver to BJ a letter identifying all persons who are, at
the time this Agreement is submitted for approval to the
stockholders of Western, "affiliates" of Western for purposes of
Rule 145 under the Securities Act. Western shall use its reasonable
best efforts to cause each such person to deliver to BJ on or prior
to the Closing Date an affiliates' agreement substantially in the
form attached hereto as Exhibit B.
Section 8.13 Conveyance Taxes. BJ and Western shall cooperate
in the preparation, execution and filing of all returns,
questionnaires, applications or other documents regarding any real
property transfer or gains, sales, use, transfer, value added,
stock transfer and stamp taxes, any transfer, recording,
registration and other fees, and any similar taxes which become
payable in connection with the transactions contemplated hereby
that are required or permitted to be filed on or before the
Effective Time. Any liability with respect to the transfer of the
property of Western arising out of the New York State Real Property
Transfer Gains Tax, the New York State Real Estate Transfer Tax or
the New York City Real Property Transfer Tax shall be borne by BJ
and expressly shall not be the liability of the stockholders of
Western.
Section 8.14 Additional Agreements. Subject to the terms and
conditions set forth herein, each of the parties hereto agrees to
use its best efforts to take, or cause to be taken, all action and
to use its best efforts to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and
regulations and to otherwise use its best efforts to consummate and
make effective the transactions contemplated by this Agreement,
including using its best efforts to satisfy the conditions
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precedent to the obligations of any of the parties hereto, to
obtain all necessary waivers, consents and approvals, to obtain
waivers or consents from holders of, or to arrange to pay or for
the prepayment of, indebtedness which would be the subject of an
event of default as a result of the Merger, to effect all necessary
registrations and filings (including but not limited to filings
under the Hart Scott Act), and to cause to be lifted any injunction
or other legal bar to the Merger (and, in such case, to proceed
with the Closing and the Merger as expeditiously as possible),
subject, however, to the requisite vote of the stockholders of
Western and BJ.
Section 8.15 Dividends. BJ shall not declare, set aside or pay
any dividend payable in cash, stock or property with respect to any
capital stock prior to the Effective Time.
Section 8.16 Election to BJ's Board of Directors. At the
Effective Time of the Merger, BJ shall promptly increase the size
of its board of directors in order to enable the three current
outside directors of Western listed on Exhibit C hereto (the
"Western Representatives") to be appointed to BJ's Board of
Directors and for at least one year after the next annual meeting
of stockholders of BJ, subject to fiduciary obligations under
applicable law, shall use its best efforts to cause the Western
Representatives to be elected to BJ's Board of Directors by the
stockholders of BJ.
Section 8.17 BJ Vote. BJ will vote (or consent with respect
to) or cause to be voted (or a consent to be given with respect to)
any Western Common Stock and any shares of common stock of BJ Sub
beneficially owned by it or any of its subsidiaries or with respect
to which it or any of its subsidiaries has the power (by agreement,
proxy or otherwise) to cause to be voted (or to provide a consent),
in favor of the adoption and approval of this Agreement at any
meeting of stockholders of Western or BJ Sub, respectively, at
which this Agreement shall be submitted for adoption and approval
and at all adjournments or postponements thereof (or, if
applicable, by any action of stockholders of either Western or BJ
Sub by consent in lieu of a meeting).
Section 8.18 Warrant Agreement; Reservation of BJ Common
Stock. Prior to the Effective Time, BJ shall execute and deliver to
Western the Warrant Agreement and shall reserve for issuance such
number of shares of BJ Common Stock to be issued upon conversion of
the Western Convertible Debentures.
Section 8.19 Supplemental Indentures. BJ Sub will use its best
efforts to execute and deliver to Western supplemental indentures
with respect to each of the Western Senior Notes and the Western
Convertible Debentures.
Section 8.20 BJ Standstill. If this Agreement is terminated
(a) under the circumstances specified in Section 8.10(f) and BJ is
thereby obligated to pay to Western the $20 million fee specified
in Section 8.10(f), (b) pursuant to Section 10.1(l), or (c)
pursuant to Section 10.1(k), then for five years after the date of
such termination in the case of a termination under the
circumstances specified in Section 8.10(f) or pursuant to Section
10.10), and for two years after the date of such termination in the
case of a termination pursuant to Section 10.1(k), BJ and each of
its successors will not, and will cause its affiliates not to:
(i) acquire, offer or propose to acquire, or agree to
acquire, directly or indirectly, by merger, purchase or
otherwise, beneficial ownership of any assets or voting
securities of Western or its affiliates or any direct rights
or options to acquire (through purchase, exchange, conversion
or otherwise) any assets or voting securities of Western or
its affiliates;
(ii) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are
defined in Rule 14a-1 of Regulation 14A promulgated by the
Commission, disregarding clause (iv) of Rule 14a-1(1)(2), but
including any solicitation exempted pursuant to Rule
14a-2(b)(1)) to vote (including by the execution of actions by
written
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consent), or seek to advise, encourage or influence any person
or entity with respect to the voting of, any voting securities
of Western;
(iii) call, or in any way participate in a call for, any
meeting of stockholders of Western (or take any action with
respect to stockholders acting by written consent);
(iv) form, join or in any way participate in a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act)
with respect to any voting securities of Western; or
(v) otherwise act to control or influence, or seek to
control or influence, Western or the management, Board of
Directors, policies or affairs of Western, including, without
limitation, (A) making any offer or proposal to acquire any
securities or assets of Western or any of its affiliates or
soliciting or proposing to effect or negotiate any form of
business combination, restructuring, recapitalization or other
extraordinary transaction involving Western, its affiliates or
any of their respective securities or assets, (B) seeking
Board representation or the removal of any directors or a
change in the composition or size of the Board of Directors of
Western, (C) making any request to amend or waive any
provision of this Section 8.20, (D) disclosing any intent,
purpose, plan or proposal with respect to this Section 8.20 or
Western, its affiliates or the boards of directors,
management, policies or affairs or securities or assets of
Western or its affiliates that is inconsistent with this
Section 8.20, including an intent, purpose, plan or proposal
that is conditioned on, or would require, waiver, amendment,
nullification or invalidation of any provision of this Section
8.20, or take any action that could require Western or any of
its affiliates to make any public disclosure relating to any
such intent, purpose, plan, proposal or condition, or (E)
assisting, advising or encouraging any person with respect to,
or seeking to do, any of the foregoing.
Section 8.21 Western Standstill. If this Agreement is
terminated under the circumstances specified in Section 8.10(f) and
BJ pays to Western the $20 million fee specified in Section
8.10(f), then for five years after the date of such termination
Western and each of its successors will not, and will cause its
affiliates not to:
(i) acquire, offer or propose to acquire, or agree to
acquire, directly or indirectly, by merger, purchase or
otherwise, beneficial ownership of any assets or voting
securities of BJ or its affiliates or any direct rights or
options to acquire (through purchase, exchange, conversion or
otherwise) any assets or voting securities of BJ or its
affiliates;
(ii) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are
defined in Rule 14a-1 of Regulation 14A promulgated by the
Commission, disregarding clause (iv) of Rule 14a-1(1)(2), but
including any solicitation exempted pursuant to Rule
14a-2(b)(1)) to vote (including by the execution of actions by
written consent), or seek to advise, encourage or influence
any person or entity with respect to the voting of, any voting
securities of BJ;
(iii) call, or in any way participate in a call for, any
meeting of stockholders of BJ (or take any action with respect
to stockholders acting by written consent);
(iv) form, join or in any way participate in a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act)
with respect to any voting securities of BJ; or
(v) otherwise act to control or influence, or seek to
control or influence, BJ or the management, Board of
Directors, policies or affairs of BJ, including, without
limitation, (A) making any offer or proposal to acquire any
securities or assets of BJ or any of its affiliates or
soliciting or proposing to effect or negotiate any form of
business combination, restructuring, recapitalization or other
extraordinary transaction involving BJ, its affiliates or any
of their
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respective securities or assets, (B) seeking Board
representation or the removal of any directors or a change in
the composition or size of the Board of Directors of BJ, (C)
making any request to amend or waive any provision of this
Section 8.21, (D) disclosing any intent, purpose, plan or
proposal with respect to this Section 8.21 or BJ, its
affiliates or the boards of directors, management, policies or
affairs or securities or assets of BJ or its affiliates that
is inconsistent with this Section 8.21, including an intent,
purpose, plan or proposal that is conditioned on, or would
require, waiver, amendment, nullification or invalidation of
any provision of this Section 8.21, or take any action that
could require BJ or any of its affiliates to make any public
disclosure relating to any such intent, purpose, plan,
proposal or condition, or (E) assisting, advising or
encouraging any person with respect to, or seeking to do, any
of the foregoing.
ARTICLE IX
CONDITIONS PRECEDENT
Section 9.1 Conditions to Each Party's Obligation to Effect
the Merger. The respective obligations of each party to effect the
Merger shall be subject to the fulfillment at or prior to the
Closing Date of the following conditions:
(a) This Agreement and the Merger and the other
transactions contemplated hereby shall have been adopted and
approved by the requisite vote of the holders of Western
Common Stock.
(b) The waiting periods applicable to the consummation
of the Merger under the Hart Scott Act shall have expired or
been earlier terminated.
(c) No preliminary or permanent injunction or other
order, decree or ruling by any United States federal or state
court of competent jurisdiction or by any United States
federal or state governmental, regulatory or administrative
agency or authority which prevents the consummation of the
Merger shall have been issued and remain in effect.
(d) No statute, rule or regulation shall have been
enacted by any United States federal or state governmental,
regulatory or administrative agency or authority that makes
the consummation of the Merger illegal or would otherwise
prevent the consummation of the Merger.
(e) The S-4 shall have become effective, and any
required post-effective amendment shall have become effective,
under the Securities Act and shall not be the subject of any
stop order or proceedings seeking a stop order, and any
material "blue sky" and other state securities laws applicable
to the registration of the BJ Common Stock (including
associated BJ Purchase Rights) and BJ Warrants (including the
BJ Common Stock issuable upon exercise thereof) to be
exchanged for Western Common Stock shall have been complied
with.
(f) The shares of BJ Common Stock (including associated
BJ Purchase Rights) issuable to Western's stockholders
pursuant to this Agreement shall have been approved for
listing on the NYSE, subject to official notice of issuance.
(g) The issuance of BJ Common Stock and BJ Warrants in
the Merger and this Agreement shall have been approved by the
affirmative vote of holders of BJ Common Stock required by
NYSE Rule 312.05.
Section 9.2 Condition to Obligations of Western to Effect the
Merger. The obligations of Western to effect the Merger shall be
subject to the fulfillment at or prior to the Closing Date of the
following additional conditions:
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(a) BJ and BJ Sub shall have performed or complied with
in all material respects their agreements and covenants
contained in this Agreement and the Senior Executive
Termination Agreements required to be performed or complied
with at or prior to the Closing Date, and the representations
and warranties of BJ and BJ Sub contained in this Agreement
shall be true in all respects when made and on and as of the
Closing Date with the same force and effect as if made on and
as of such date, except as expressly contemplated or otherwise
expressly permitted by this Agreement and except that any
representation and warranty not modified by reference to a BJ
Material Adverse Effect that is not true in all respects shall
nevertheless be deemed, for purposes of this Section 9.2(a),
to be true in all respects unless the failure of such
representation or warranty to be so true has had, or is
reasonably likely to have, a BJ Material Adverse Effect.
(b) The Warrant Agreement shall have been executed and
delivered by BJ.
Section 9.3 Conditions to Obligations of BJ and BJ Sub to
Effect the Merger. The obligations of BJ and BJ Sub to effect the
Merger shall be subject to the fulfillment at or prior to the
Closing Date of the following additional conditions:
(a) Western shall have performed or complied with in all
material respects its agreements and covenants contained in
this Agreement required to be performed or complied with at or
prior to the Closing Date, and the representations and
warranties of Western contained in this Agreement shall be
true in all respects when made and on and as of the Closing
Date with the same force and effect as if made on and as of
such date, except as expressly contemplated or otherwise
expressly permitted by this Agreement and except that any
representation and warranty not modified by reference to a
Western Material Adverse Effect that is not true in all
respects shall nevertheless be deemed, for purposes of this
Section 9.3(a), to be true in all respects unless the failure
of such representation or warranty to be so true has had, or
is reasonably likely to have, a Western Material Adverse
Effect.
(b) The amendment to the Western Rights Agreement
referred to in Section 6.13(a) shall be in full force and
effect and shall be binding, valid and enforceable.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
Section 10.1 Termination. Except as provided in the concluding
sentence of this Section 10.1, this Agreement may be terminated at
any time prior to the Effective Time, whether before or after
approval by the stockholders of Western:
(a) by mutual written consent of the Board of Directors
of BJ and the Board of Directors of the Western;
(b) by either BJ or Western, if the Merger shall not
have been consummated on or before August 31, 1995, which date
may be extended by the mutual written consent of the Board of
Directors of BJ and the Board of Directors of Western;
provided, however, that such right to terminate this Agreement
shall not be available to any party that has breached in any
material respect its obligations under this Agreement in any
manner that shall have proximately contributed to the failure
of the Merger to occur on or before such date; provided,
further, that BJ shall have no right to terminate this
Agreement pursuant to this Section 10.1(b) if BJ shall have
exercised its rights under Sections 8.10(f) or 10.1(m) to
extend either the Antitrust Approval Period or the Section
10.1(m) Period (as defined below) until after the Antitrust
Approval Period and the Section 10.1(m) Period shall have
expired;
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(c) by Western, if any of the conditions specified in
Sections 9.1(d) and 9.2 have not been met or waived by
Western, but only at and after such time as such condition can
no longer be satisfied;
(d) by BJ, if any of the conditions specified in
Sections 9.1(d) and 9.3 have not been met or waived by BJ, but
only at and after such time as such condition can no longer be
satisfied;
(e) by BJ, if (i) the Board of Directors of Western
shall have (A) withdrawn or modified, in any manner which is
adverse to BJ or BJ Sub, its recommendation or approval of the
Merger or this Agreement and the transactions contemplated
hereby and (B) recommended to stockholders of Western any
proposal involving an Alternative Transaction, or shall have
resolved to do both of the foregoing, (ii) the Board of
Directors of Western shall have withdrawn or modified, in any
manner which is adverse to BJ or BJ Sub, its recommendation or
approval of the Merger or this Agreement and the transactions
contemplated hereby under any circumstances other than those
specified in clause (i) above, or (iii) any corporation,
partnership, person, other entity or group (as defined in
Section 13(d)(3) of the Exchange Act) other than BJ or any of
its subsidiaries (collectively, "Third Persons") shall have
become an "Acquiring Person" (as defined in the Western Rights
Agreement);
(f) by Western, if it shall exercise the right specified
in clause (y) of Section 8.4(a), provided that Western may not
effect such termination pursuant to this Section 10.1(f)
unless and until it gives BJ at least three Trading Days'
prior notice of its intention to effect such termination
pursuant to this Section 10.1(f);
(g) by Western, if BJ shall have entered into an
agreement to effectuate a BJ Alternative Transaction;
(h) by either BJ or Western, if the stockholders of
Western shall have failed to adopt this Agreement and approve
the Merger at the meeting of Western's stockholders referred
to in Section 8.3;
(i) by either BJ or Western, if either is prohibited by
a final and nonappealable order or injunction of a United
States federal or state court of competent jurisdiction from
consummating the Merger;
(j) by either BJ or Western, if the stockholders of BJ
shall have failed to approve the issuance of the Stock
Consideration and Warrant Consideration in the Merger at the
meeting of BJ's stockholders referred to in Section 8.3;
(k) by Western, if the Closing Price is below $14.00,
provided that Western may not effect such termination pursuant
to this Section 10.1(k) if BJ should offer to amend Section
3.1(b)(ii) so that "Stock Consideration" will be defined so
that each share of Western Common Stock which is the subject
of a Stock Election will be converted into, exchangeable for
and represent the right to receive, together with a
corresponding number of BJ Purchase Rights, a number of shares
of BJ Common Stock having the same aggregate value based on
the actual Closing Price as the aggregate value of the number
of shares of BJ Common Stock into which such share of Western
Common Stock would have been converted if the Closing Price
had been $14.00;
(l) by either BJ or Western, if the final terms of a
consent decree between BJ and the Antitrust Division or the
FTC (the "Consenting Parties") with respect to the Merger (the
"Consent Decree Final Agreement") have not been agreed to by
the Consenting Parties (as confirmed by Western), or an order
of a Federal District Court adjudging that the Merger does
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not violate the Federal antitrust laws shall not have been issued
(such Consent Decree Final Agreement or court order being
collectively referred to as the "Antitrust Disposition Action"), by
100 days after Western and its outside counsel have each certified
to BJ (the "Western Compliance Certificates") that to the best of
their knowledge Western has "substantially complied" with the
Antitrust Division's or FTC's "second request" for information from
Western under the Hart Scott Act, provided that such 100-day period
may be extended for two successive 30-day periods in the manner
specified in Section 8.10(f) (but in no event longer than a total
of 160 days);
(m) by either BJ or Western, if the Merger shall not
have occurred by the thirtieth day after the later of (i) the
date of the Antitrust Disposition Action, (ii) the date on
which Western's stockholders shall have approved the Merger,
or (iii) the date on which BJ's stockholders shall have
approved the Merger (provided the meeting of BJ's stockholders
shall have initially been scheduled to be held prior to the
thirtieth day after the date of the Antitrust Disposition
Action and adjourned for good reason to no later than the
Final Adjournment Date (as defined below)); provided, however,
that BJ and Western shall not have the right to terminate this
Agreement pursuant to this Section 10.1(m) if the Merger shall
not have occurred by such thirtieth day due to the existence
of a preliminary or permanent injunction or other order,
decree or ruling by any United States federal or state court
of competent jurisdiction or by any United States federal or
state governmental, regulatory or administrative agency or
authority which prevents the consummation of the Merger
(unless the action giving rise to such injunction, order,
decree or ruling sought to enjoin or otherwise prohibit the
Merger for alleged violations of the federal or state
antitrust laws or such action was initiated by BJ); provided,
further, that in the event any such injunction, order, decree
or ruling shall cause the 30-day period referred to at the
beginning of this Section 10.1(m) (the "Section 10.1(m)
Period") to be delayed, the parties hereto shall use their
best efforts to cause such injunction, order, decree or ruling
to be lifted at the earliest practicable date; provided,
further, that BJ shall have the option to extend the Section
10.1(m) Period for a period of 30 additional days (but in no
event later than the Final Adjournment Date) if either of the
following conditions shall have been satisfied:
(A) if the Antitrust Approval Period was not
extended pursuant to Section 8.10(f), by the delivery of
written notice of such extension by BJ to Western; or
(B) if the Antitrust Approval Period was not
extended for more than 30 days pursuant to Section
8.10(f), by (i) paying a fee of $5,000,000 to Western if
the Antitrust Approval Period was extended pursuant to
clause (i) of the first sentence of Section 8.10(f), or
(ii) by paying a fee of $2,500,000 to Western if the
Antitrust Approval Period was extended pursuant to clause
(ii) of the first sentence of Section 8.10(f).
If the Antitrust Approval Period was not extended pursuant to
Section 8.10(f), the date of BJ's stockholders' meeting may not be
adjourned for more than 60 days after the Antitrust Disposition
Action (the "Final Adjournment Date"). If the Antitrust Approval
Period was extended for 30 days pursuant to Section 8.10(f), the
Final Adjournment Date may not be more than 30 days after the
Antitrust Disposition Action; provided, however, that BJ may extend
the Final Adjournment Date for up to 60 days after the date of the
Antitrust Disposition Action by (x) paying a fee of $5,000,000 to
Western if the Antitrust Approval Period was extended pursuant to
clause (i) of the first sentence of Section 8.10(f), or (y) by
paying a fee of $2,500,000 to Western if the Antitrust Approval
Period was extended pursuant to clause (ii) of the first sentence
of Section 8.10(f). If the Antitrust Approval Period was extended
for 60 days pursuant to Section 8.10(f), the Final Adjournment Date
may not be more than 30 days after the Antitrust Disposition
Action. Notwithstanding anything to the contrary provided elsewhere
in this Section 10.1, BJ may not terminate this Agreement pursuant
to Sections 10.1(d) or 10.1(e)(iii) after the 100-day Antitrust
Approval Period.
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Section 10.2 Effect of Termination. In the event of
termination of this Agreement by either BJ or Western, as provided
above, this Agreement shall forthwith become void and there shall
be no liability or obligation on the part of either Western or BJ
or BJ Sub or their respective officers or directors (except for
this Section 10.2 and Sections 8.10, 8.20 and 8.21, which shall
survive termination of this Agreement and except as set forth in
the confidentiality agreements between BJ and Western dated October
7, 1994 (collectively with the confidentiality agreements among
Collier, Shannon, Rill & Scott, Sullivan & Cromwell and Simpson
Thacher & Bartlett, the "Confidentiality Agreements"), each of
which Confidentiality Agreements shall survive such termination)
and except that nothing herein shall relieve any party from
liability for any breach of this Agreement; provided, however, that
the payment of any fees and expense reimbursements specified in
Sections 8.10(b),(d) or (i) upon the termination of this Agreement
under any of the circumstances specified in Sections 8.10(b),(d) or
(f) shall constitute the parties' sole remedy for any breach of
this Agreement which may have occurred prior to such termination.
Section 10.3 Amendment. This Agreement may be amended by the
parties hereto, by or pursuant to action taken by their respective
Boards of Directors, at any time before or after approval hereof by
the stockholders of Western but, after any such approval, no
amendment shall be made which changes the way in which the Merger
Consideration is calculated under Article III or which in any way
alters or changes any of the other terms or conditions of this
Agreement if such alteration or change would materially adversely
affect the rights of such stockholders, without the further
approval of such stockholders. This Agreement may not be amended
except by an instrument in writing signed and acknowledged on
behalf of each of the parties hereto.
Section 10.4 Waiver. At any time prior to the Closing Date,
each of the parties hereto may (i) extend the time of the
performance of any of the obligations or other acts of the other
parties hereto, (ii) waive any inaccuracies in the representations
and warranties contained herein or in any document delivered
pursuant hereto, (iii) waive compliance with any of the agreements
or conditions contained herein which may legally be waived and (iv)
grant any consents hereunder. Any agreement on the part of any
party hereto to any such extension or waiver shall be valid if set
forth in an instrument in writing signed on behalf of such party.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Notice of Breach. Each party will promptly give
written notice to each other party upon becoming aware of the
occurrence of any breach of any of its representations, warranties
and covenants contained in this Agreement and will use its best
efforts to prevent or promptly remedy the same.
Section 11.2 Survival of Representations and Warranties. The
covenants of Western, BJ and BJ Sub contained in Sections 3.6, 8.6,
8.8, 8.10, 8.13 and 8.16 shall survive the consummation of the
Merger. None of the representations and warranties in this
Agreement shall survive the Merger.
Section 11.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given (i) on the
date delivered, if delivered personally, (ii) on the first Trading
Day following the deposit thereof with Federal Express, if sent by
Federal Express, and (iii) on the fourth Trading Day following the
mailing thereof with postage prepaid, if mailed by registered or
certified mail (return receipt requested), in each case to the
parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
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(a) If to BJ or BJ Sub, to:
BJ Services Company
5500 Northwest Central Drive
Houston, Texas 77092
Attention: Mr. J.W. Stewart
Chairman and President
with copies to:
Andrews & Kurth
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: G. Michael O'Leary, Esq.
and
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Robert L. Friedman, Esq.
(b) if to Western, to:
The Western Company of North America
515 Post Oak Boulevard
Houston, Texas 77027
Attention: Mr. Sheldon R. Erikson
Chairman and Chief Executive Officer
with a copy to:
Graham L. Adelman, Senior Vice
President, General Counsel and Secretary
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: James C. Morphy, Esq.
Section 11.4 Definitions. (a) For purposes of this Agreement,
(i) when a reference is made in this Agreement to subsidiaries of
BJ or Western, the term "subsidiaries" means any domestic or
foreign corporation more than 50% of whose outstanding voting
securities are directly or indirectly owned by BJ or Western, as
the case may be, and (ii) the term "affiliate" shall have the
meaning set forth in Rule 12b-2 under the Exchange Act. The
headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation
of this Agreement.
(b) As used herein, "BJ Alternative Transaction" means (i)
any merger, consolidation or other business combination transaction
involving BJ in which another corporation, partnership, person,
other entity or group (as defined in Section 13(d)(3) of the
Exchange Act) would acquire beneficial ownership of at least 50% of
the aggregate voting power of all voting securities of BJ or the
A-39
Surviving Corporation, as the case may be; (ii) any tender offer or
exchange offer for any securities of BJ which, if consummated,
would result in another corporation, partnership, person, other
entity or group (as defined in Section 13(d)(3) of the Exchange
Act) becoming the beneficial power of at least 50% or more of the
aggregate voting power of all voting securities of BJ; (iii) any
sale or other disposition of assets of BJ or any of its
subsidiaries in a single transaction or in a series of related
transactions if the fair market value of such assets exceeds 50% of
the aggregate fair market value of the assets of BJ and its
subsidiaries taken as a whole before giving effect to such sale or
other disposition; (iv) the adoption by BJ of a plan of
liquidation; or (v) the repurchase by BJ or any of its subsidiaries
of shares of BJ Common Stock representing at least 50% or more of
the aggregate voting power of all voting securities of BJ.
Section 11.5 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest
extent possible.
Section 11.6 Entire Agreement; Assignment. This Agreement,
together with the Senior Executive Termination Agreements, the
Warrant Agreement and the Confidentiality Agreements, constitutes
the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with
respect to the subject matter hereof (except for the Senior
Executive Termination Agreements, the Warrant Agreement and the
Confidentiality Agreements). This Agreement shall not be assigned
by operation of law or otherwise, except that BJ and BJ Sub may
assign all or any of their respective rights and obligations
hereunder to any direct or indirect wholly owned subsidiary or
subsidiaries of BJ, provided that no such assignment shall relieve
the assigning party of its obligations hereunder if such assignee
does not perform such obligations.
Section 11.7 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto,
and nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this
Agreement, except as provided in Section 8.6(e) and, to the limited
extent provided for therein, Section 8.8(d).
Section 11.8 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 11.9 Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and
shall not affect in any way the meaning or interpretation of this
Agreement.
Section 11.10 Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed
to be an original but all of which taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, BJ, BJ Sub and Western have caused
this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
BJ SERVICES COMPANY
By: /s/ J.W. Stewart
Name: J.W. Stewart
Title: Chairman and President
WCNA ACQUISITION CORP.
By: /s/ J.W. Stewart
Name: J.W. Stewart
Title: President
THE WESTERN COMPANY
OF NORTH AMERICA
By: /s/ Sheldon R. Erickson
Name: Sheldon R. Erickson
Title: Chairman and
Chief Executive Officer
A-41
Exhibit 5(b)
FIRST AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
March 7, 1995, among BJ SERVICES COMPANY ("BJ"), WCNA ACQUISITION
CORP., a wholly owned subsidiary of BJ("BJ Sub"), and THE WESTERN
COMPANY OF NORTH AMERICA ("Western"), each a Delaware corporation.
WHEREAS, BJ,BJ Sub and Western have entered into an Agreement
and Plan of Merger, dated as of November 17, 1994 (the "Merger
Agreement"); and
WHEREAS, pursuant to Section 1.5 of the Merger Agreement, BJ
hereby notifies Western of its desire to structure the Merger so
that Western merges into BJ and BJ is the Surviving Corporation
after the Effective Time;
NOW, THEREFORE, in consideration of the foregoing premises,
and other good and valuable consideration, the parties hereto agree
as follows:
ARTICLE I
AMENDMENTS
1.1 As of the date hereof, BJ Sub shall cease to be a party +o
the Merger Agreement and shall henceforth have no rights or
obligations thereunder.
1.2 Sections 1.1, 1.4, 2.1, 2.2, and 8.19 of the Merger
Agreement are hereby amended by deleting each reference to "BJ Sub"
therein and inserting "BJ" in place thereof.
1.3 Section 1.2 of the Merger Agreement is hereby amended by
deleting the words ", BJ Sub" and "cause the Surviving Corporation
to" in the first sentence of such section.
1.4 Section 2.3 of the Merger Agreement is hereby amended by
(i) deleting the word "The" in the first sentence of such section
and inserting the words "Subject to Section 8.16, the" in place
thereof and (ii) deleting the reference to "BJ Sub" in the same
sentence and inserting "BJ" in place thereof.
1.5 Sections 3.1(a) and 3.1(c) of the Merger Agreement are
hereby amended by deleting the references to ", BJ Sub" therein.
1.6 Section 3.1(d) of the Merger Agreement is hereby deleted
in its entirety, and the following is inserted in place thereof:
"(d) BJ Shares. Each share of common stock, par value
$0.10 per share, of BJ("BJ Common Stock") issued and
outstanding immediately prior to the Effective Time shall
remain outstanding after the Merger and, together with BJ
Common Stock issued pursuant to the Merger, thereafter shall
constitute all of the common stock of the Surviving
Corporation issued and outstanding immediately after the
Effective Time."
1.7 Section 3.2(b) of the Merger Agreement is hereby amended
by deleting the reference to "$1.00" at the end thereof and
inserting in place thereof "$5.00".
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1.8 Section 3.4 of the Merger Agreement is hereby amended by
deleting the words "Warrant Consideration Value" and inserting in
place thereof the words "Warrant Current Market Price".
1.9 Section 3.7 of the Merger Agreement is hereby amended by
(i) deleting from the first sentence thereof the words "Neither BJ
nor" and capitalizing the first letter of the following word and
(ii) inserting the word "not" between the words "shall be" in the
same sentence.
1.10 Section 4.2 of the Merger Agreement is hereby amended by
deleting from the first sentence thereof the word "without" and
inserting the words "$1 per share" after the words "par value" in
the same sentence.
1.11 Section 4.4 of the Merger Agreement is hereby amended by
(i) deleting from the third sentence thereof the words "each of",
"and BJ Sub" and "and of BJ Sub", (ii) deleting from the fifth
sentence thereof the words "Neither", "nor BJ Sub" and ", with
respect to BJ," and (iii) inserting the word "not" between the
words "is subject" in the fifth sentence thereof.
1.12 Section 4.11 of the Merger Agreement is hereby amended by
deleting the first sentence of such section and inserting the
following in place thereof: "The affirmative vote of the holders of
a majority of the outstanding shares of BJ Common Stock entitled to
vote thereon is required to approve this Agreement and the issuance
of BJ Common Stock and BJ Warrants in the Merger."
1.13 Sections 4.14, 10.1(e), 10.2, and 11.3(a) of the Merger
Agreement are hereby amended by deleting the words "or BJ Sub" in
each such section.
1.14 Article V of the Merger Agreement is hereby deleted in
its entirety.
1.15 Article VI of the Merger Agreement is hereby amended by
deleting from the first line thereof the words "and BJ Sub".
1.16 Section 6.4 of the Merger Agreement is hereby amended by
(i) deleting from the third sentence thereof the words "each of"
and "and BJ Sub" and (ii) deleting from the fifth sentence thereof
the words "or BJ Sub".
1.17 Section 8.3 of the Merger Agreement is hereby amended by
(i) deleting from the fourth sentence thereof the words "NYSE Rule
312.05" and inserting in place thereof the words "applicable
Delaware Corporation Law" and (ii) deleting from the penultimate
sentence thereof the words "or NYSE rules, as the case may be,".
1.18 Section 8.6(a) of the Merger Agreement is hereby amended
by (i) deleting the words "BJ agrees that it or" and (ii) deleting
from the parenthetical at the end of such section the words "BJ or'
1.19 Section 8.6(b) of the Merger Agreement is hereby deleted
in its entirety and the following is inserted in place thereof:
"(b) Any Indemnified Party wishing to claim
indemnification under paragraph (a) of this Section 8.6, upon
learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify the Surviving Corporation
thereof, but the failure to so notify shall not relieve the
Surviving Corporation of any liability it may have to such
Indemnified Party except to the extent that such failure
materially prejudices the Surviving Corporation. In the event
of any such claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), (i) the
Surviving Corporation shall have the right to assume the
defense thereof (which it shall, in cooperation with the
Indemnified Parties, vigorously defend)
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and the Surviving Corporation shall not be liable to such
Indemnified Parties for any legal expenses of other counsel or
any other expenses subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if
the Surviving Corporation elects not to assume such defense or
there is a conflict of interest between the Surviving
Corporation and the Indemnified Parties, including situations
in which there are one or more legal defenses available to the
Indemnified Party that are different from or additional to
those available to the Surviving Corporation, the Indemnified
Parties may retain counsel satisfactory to them, and the
Surviving Corporation shall pay all reasonable fees and
expenses of such counsel for the Indemnified Parties promptly
as statements therefor are received; provided, however, that
the Surviving Corporation shall not, in connection with any
one such action or proceeding or separate but substantially
similar actions or proceedings arising out of the same general
allegations, be liable for the fees and expenses of more than
one separate firm of attorneys at any time for all Indemnified
Parties except to the extent that local counsel, in addition
to such parties' regular counsel, is required in order to
effectively defend against such action or proceeding, (ii) the
Indemnified Parties will cooperate in the defense of any such
matter and (iii) the Surviving Corporation shall not be liable
for any settlement effected without its prior written consent,
and provided, further, that the Surviving Corporation shall
not have any obligation hereunder to any Indemnified Party
when and if a court of competent jurisdiction shall ultimately
determine, and such determination shall have become final,
that the indemnification of such Indemnified Party in the
manner contemplated hereby is prohibited by applicable law."
1.20 Section 8.8(a) of the Merger Agreement is hereby amended
by (i) deleting from clause (ii) of such section the words "BJ, BJ
Sub, Western or" and (ii) deleting from clause (iii) of such
section the words "BJ, Western or".
1.21 Section 8.8(b) of the Merger Agreement is hereby amended
by (i) deleting the words ", and will cause the Surviving
Corporation to" and (ii) deleting from the proviso thereof the
words "or the Surviving Corporation".
1.22 Section 8.8(c) of the Merger Agreement is hereby amended
by (i) deleting the words "or BJ" and (ii) deleting the proviso in
such section and inserting the following in place thereof:
"provided, however, that employees of the Surviving Corporation who
become participants in a defined benefit pension plan that was
sponsored by BJ prior to the Effective Time or in a defined benefit
pension plan sponsored by the Surviving Corporation which is
adopted on or after the Effective Time shall not be given credit
for benefit accrual purposes to the extent such credit would result
in a duplication of benefits under more than one defined benefit
pension plan."
1.23 Section 8.10(b) of the Merger Agreement is hereby amended
by deleting the words "or BJ Sub" and "and BJ Sub".
1.24 Section 8.11 of the Merger Agreement is hereby amended by
(i) deleting from the fifth sentence of such section the reference
to ", BJ Sub" and (ii) deleting from the last sentence of such
section the words ", BJ and BJ Sub" and inserting the words "and
BJ" in place thereof.
1.25 Section 8.17 of the Merger Agreement is hereby amended by
(i) deleting the words "and any shares of common stock of BJ Sub"
and "or BJ Sub, respectively," and (ii) deleting the words "either
Western or BJ Sub" and inserting the word "Western" in place
thereof.
1.26 Section 9.1(g) of the Merger Agreement is hereby amended
by (i) deleting the word "affirmative" and inserting in place
thereof the word "requisite" and (ii) deleting the words "required
by NYSE Rule 312.05".
B-3
1.27 Section 9.2(a) of the Merger Agreement is hereby amended
by (i) deleting the words "and BJ Sub" where it appears in two
places and (ii) deleting the word "their" and inserting the word
"its" in Place thereof.
1.28 Section 9.3 of the Merger Agreement is hereby amended by
deleting the words "and BJ Sub" from the heading (with a
corresponding change to the index) and the first line thereof.
1.29 Section 10.1(j) of the Merger Agreement is hereby amended
by inserting between the words "approve the" the words "this
Agreement and".
1.30 Section 11.2 of the Merger Agreement is hereby amended by
deleting from the first sentence of such section the words ", BJ
and BJ Sub" and inserting the words "and BJ' in place thereof.
1.31 Section 11.4(b) of the Merger Agreement is hereby amended
by deleting from clause (i) thereof the words "or the Surviving
Corporation, as the case may be".
1.32 Section 11.6 of the Merger Agreement is hereby amended by
(i) deleting the words "and BJ Sub" and (ii) deleting the words
"their respective" and inserting the word "its" in place thereof.
1.33 The form of Warrant Agreement attached as Exhibit A to
the Merger Agreement shall be deleted and replaced in its entirety
with Amended Exhibit A which is attached as Annex I to this First
Amendment.
ARTICLE II
MISCELLANEOUS
2.1 Terms used in this First Amendment without definition
shall have the meanings ascribed to such terms in the Merger
Agreement.
2.2 This First Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and
the same agreement.
2.3 Except as expressly amended and modified by the terms of
this First Amendment, the terms and provisions of the Merger
Agreement shall remain in full force and effect
2.4 This First Amendment shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
B-4
IN WITNESS WHEREOF, BJ, BJ Sub and Western have caused this First
Amendment to be executed as of the date first written above by
their respective of officers thereunto duly authorized.
BJ SERVICES COMPANY
By: /s/ J.W. STEWART
Name: J.W. Stewart
Title: President and Chief
Executive Officer
WCNA ACQUISITION CORP.
By: /s/ J.W. STEWART
Name: J.W. Stewart
Title: President
THE WESTERN COMPANY OF
NORTH AMERICA
By: /s/ GRAHAM L. ADELMAN
Name: Graham L. Adelman
Title: Senior Vice President
B-5
Appendix B:
Annex I
[FORM OF WARRANT AGREEMENT]
BJ SERVICES COMPANY
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
Warrant Agent
Warrant Agreement
Dated as of ,1995 [the Closing Date]
B-6
Table of Contents
Section 1. Certain Definitions
Section 2. Appointment of Warrant Agent
Section 3. Form of Warrant Certificates
Section 4. Countersignature and Registration
Section 5. Transfer, Split Up, Combination and Exchange
of Warrant Certificates; Mutilated, Destroyed,
Lost or Stolen Warrant Certificates
Section 6. Exercise of BJ Warrants; Exercise Price;
Expiration Date of BJ Warrants
Section 7. Cancellation and Destruction of Warrant
Certificates
Section 8. Reservation and Availability of Shares of BJ
Common Stock or Cash
Section 9. BJ Common Stock Record Date
Section 10. Adjustment of Exercise Price, Number of Shares
of BJ Common Stock or Number of BJ Warrants
Section 11. Certification of Adjusted Exercise Price or
Number of Shares of BJ Common Stock
Section 12. Reclassification, Consolidation, Merger,
Combination, Sale or Conveyance
Section 13. Fractional BJ Warrants and Fractional Shares
of BJ Common Stock
Section 14. Right of Action
Section 15. Agreement of Warrant Certificate Holders
Section 16. Warrant Certificate Holder Not Deemed a
Stockholder
Section 17. Concerning the Warrant Agent
Section 18. Merger or Consolidation or Change of Name of
Warrant Agent
Section 19. Duties of Warrant Agent
Section 20. Change of Warrant Agent
B-7
Section 21. Issuance of New Warrant Certificates
Section 22. Purchase of BJ Warrants by BJ
Section 23. Notice of Proposed Actions
Section 24. Notices
Section 25. Supplements and Amendments
Section 26. Successors
Section 27. Benefits of this Agreement
Section 28. Governing Law
Section 29. Counterparts
Section 30. Captions
B-8
WARRANT AGREEMENT
This Agreement, dated as of _, 1995 [the Closing Date],
between BJ SERVICES COMPANY, a Delaware corporation ("BJ"), and
FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York limited purpose
trust company (the "Warrant Agent").
WITNESSETH
WHEREAS, BJ has entered into an Agreement and Plan of Merger,
dated as of November 17, 1994, as amended (the "Merger Agreement"),
with The Western Company of North America, a Delaware corporation
("Western"), providing for the merger of Western into BJ (the
"Merger") pursuant to the terms of the Merger Agreement: and
WHEREAS, the Merger Agreement provides that all of the
outstanding shares of common stock, par value $.10 per share, of
Western, except as provided in the Merger Agreement, shall be
converted into, exchanged for and represent the right to receive
consideration specified in the Merger Agreement, which
consideration is to include warrants (the "BJ Warrants") to
purchase BJ Common Stock (as hereinafter defined) upon the terms
and subject to the conditions hereinafter set forth: and
WHEREAS, BJ wishes the Warrant Agent to act on behalf of BJ,
and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and exercise of BJ Warrants:
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) "BJ Common Stock" shall mean the Common Stock, par value
$.10 per share, of B.J.
(b) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
(c) "Close of Business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., New York
City time, on the next succeeding Business Day.
(d) "Closing Date" shall have the meaning ascribed to it in
the Merger Agreement.
(e) "Person" shall mean an individual, corporation,
association, partnership, joint venture, trust, unincorporated
organization, government or political subdivision thereof or
governmental agency or other entity.
Section 2. Appointment of Warrant Agent. BJ hereby appoints
the Warrant Agent to act as agent for BJ in accordance with the
terms and conditions hereof, and the Warrant Agent hereby accepts
such appointment. BJ may from time to time appoint such Co-Warrant
Agents as it may, in its sole discretion, deem necessary or
desirable.
B-9
Section 3. Form of Warrant Certificates. The Warrant
Certificates (together with the form of election to purchase Common
Stock and the form of assignment to be printed on the reverse
thereof) shall be substantially in the form of Exhibit 1 hereto and
may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as BJ may deem
appropriate and as are not inconsistent with the provisions of this
Agreement and the Merger Agreement or as may be required to comply
with any law or with any rule or regulation made pursuant thereto,
or to conform to usage. Subject to the provisions of Section 21
hereof, the Warrant Certificates, whenever issued, shall be dated
the Closing Date and on their face shall entitle the holders
thereof to purchase such number of shares of Common Stock as shall
be set forth therein at $30 per share (the "Exercise Price"), but
the number of such shares and the Exercise Price shall be subject
to the adjustments as provided herein.
Section 4. Countersignature and Registration. The Warrant
Certificates shall be executed on behalf of BJ by its Chairman, its
President or a Vice President, either manually or by facsimile
signature, and have affixed thereto BJ's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant
Secretary of BJ, either manually or by facsimile signature. The
Warrant Certificate shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of BJ who shall have signed any
of the Warrant Certificates shall cease to be such of officer of BJ
before countersignature by the Warrant Agent and issuance and
delivery by BJ, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the
same force and effect as though the person who signed such Warrant
Certificate had not ceased to be such officer of BJ; and any
Warrant Certificate may be signed on behalf of BJ by any person
who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of BJ to sign such Warrant
Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such an officer.
The Warrant Agent will keep or cause to be kept, at one of its
offices in New York City, books for registration and transfer of
the Warrant Certificates issued hereunder. Such books shall show
the names and addresses of the respective holders of the Warrant
Certificates, the number of BJ Warrants evidenced on its face by
each of the Warrant Certificates and the date of each of the
Warrant Certificates.
Section 5. Transfer, Split Up, Combination and Exchange of
Warrant Certificates; Mutilated Destroyed, Lost or Stolen Warrant
Certificates. Subject to the provisions of Section 13 hereof, at
any time after the close of business on the date hereof, and at or
prior to the close of business on the Expiration Date (as such term
is hereinafter defined), any Warrant Certificate or Warrant
Certificates may be transferred, split up, combined or exchanged
for another Warrant Certificate or Warrant Certificates, entitling
the registered holder to purchase a like number of shares of BJ
Common Stock as the Warrant Certificate or Warrant Certificates
surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any
Warrant Certificate shall make such request in writing delivered to
the Warrant Agent, and shall surrender the Warrant Certificate or
Warrant Certificates to be transferred, split up, combined or
exchanged at the principal office of the Warrant Agent. Thereupon
the Warrant Agent shall countersign and deliver to the person
entitled thereto a Warrant Certificate or Warrant Certificates, as
the case may be, as so requested. BJ 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 Warrant Certificates, together with reimbursement to BJ
and the Warrant Agent of all reasonable expenses incidental
thereto.
Upon receipt by BJ and the Warrant Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Warrant Certificate, and, in case of loss, theft or
destruction, of indemnity or security in customary form and amount,
and reimbursement to BJ and the Warrant Agent of all reasonable
expenses incidental thereto, and upon surrender to the Warrant
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Agent and cancellation of the Warrant Certificate if mutilated, BJ
will make and deliver a new Warrant Certificate of like tenor to
the Warrant Agent for delivery to the registered holder in lieu of
tho Warrant Certificate so lost, stolen, destroyed or mutilated.
Section 6. Exercise of BJ Warrants; Exercise Price; Expiration
Date of BJ Warrants. (a) Subject to Section 6(c) below, the
registered holder of any Warrant Certificate may exercise the BJ
Warrants evidenced thereby in whole or in part upon surrender of
the Warrant Certificate, with the form of election to purchase on
the reverse side thereof duly executed, to the Warrant Agent at the
principal office of the Warrant Agent in New York City, together
with payment of the Exercise Price in immediately available funds
for each share of BJ Common Stock as to which the BJ Warrants are
exercised, at any time prior to the close of business on ,
2000 [fifth anniversary of Closing Date] (the "Expiration Date").
(b) The Exercise Price for each share of BJ Common Stock
pursuant to the exercise of BJ Warrants shall initially be $30,
subject to adjustment from time to time as provided in Section 10
hereof. The Exercise Price shall be payable in lawful money of the
United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase duly executed, accompanied by payment of the
Exercise Price for the shares to be purchased and an amount equal
to any applicable tax or governmental charge referred to in Section
8 in cash, or by certified check or bank draft payable to the order
of BJ, the Warrant Agent shall thereupon promptly (i) requisition
from any transfer agent of the BJ Common Stock certificates for the
number of whole shares of BJ Common Stock to be purchased, and BJ
hereby irrevocably authorizes its transfer agent to comply with all
such requests, (ii) when appropriate, requisition from BJ the
amount of cash to be paid in lieu of the issuance of fractional
shares and (iii) after receipt of such certificates, cause the same
to be delivered to or upon the order of the registered holder of
such Warrant Certificate, registered in such name or names as may
be designated by such holder, and, when appropriate, after receipt
promptly deliver such cash to or upon the order of the registered
holder of such Warrant Certificate. Upon receipt by BJ of a Warrant
Certificate at the principal office of the Warrant Agent, in proper
form for exercise, and payment of the applicable Exercise Price as
required hereby, the holder of such Warrant Certificate shall be
deemed to be the holder of record of the shares of BJ Common Stock
issuable upon such exercise, notwithstanding that the stock
transfer books of BJ shall then be closed or that certificates
representing such shares of BJ Common Stock shall not then be
actually delivered to the holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate
shall exercise less than all BJ Warrants evidenced thereby, a new
Warrant Certificate evidencing BJ Warrants equivalent to the BJ
Warrants remaining unexercised shall be issued by the Warrant Agent
to the registered holder of such Warrant Certificate or to his duly
authorized assigns, subject to the provisions of Section 13
thereof.
Section 7. Cancellation and Destruction of Warrant
Certificates. All Warrant Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall, if
surrendered to BJ or to any or its agents, be delivered to the
Warrant Agent for cancellation or in cancelled form, or, if
surrendered to the Warrant Agent, shall be cancelled by it, and no
Warrant Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Warrant
Agreement. BJ shall deliver to the Warrant Agent for cancellation
and retirement, and the Warrant Agent shall so cancel and retire,
any other Warrant Certificate purchased or acquired by BJ otherwise
then upon the exercise thereof. The Warrant Agent shall deliver all
cancelled Warrant Certificates to BJ, or shall, at the written
request of BJ, destroy such cancelled Warrant Certificates, and in
such case shall deliver a certificate of destruction thereof to BJ.
Section 8. Reservation and Availability of Shares of BJ Common
Stock or Cash. BJ covenants and agrees that it will cause to be
reserved and kept available out of its authorized and
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unissued shares of Common Stock or its authorized and issued shares
of Common Stock held in its treasury, free from preemptive rights,
the number of shares of BJ Common Stock that will be sufficient to
permit the exercise in full of all outstanding BJ Warrants or keep
sufficient cash available for payment in lieu of BJ Common Stock.
BJ covenants and agrees that it will use its best efforts to
cause the BJ Common Stock issuable upon the exercise of the BJ
Warrants to be listed on the NYSE (as defined below). In addition,
BJ covenants and agrees to use its best efforts to cause the BJ
Warrants to be listed on the NYSE. To the extent that the BJ
Warrants cannot be listed on the NYSE, BJ shall use its best
efforts to cause the BJ Warrants to be listed on the NASDAQ (as
defined below).
BJ covenants and agrees that it will take all such actions as
may be necessary to insure that all shares of BJ Common Stock
delivered upon exercise of BJ Warrants shall, at the time of
delivery of the certificates for such shares (subject to payment of
the Exercise Price as contemplated by Section 6(c)), be duly
authorized, validly issued, fully paid and nonassessable.
BJ 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 original issuance or
delivery of the Warrant Certificates or certificates evidencing BJ
Common Stock upon exercise of the Warrant Certificate. BJ shall
not, however, be required to pay any tax or governmental charge
which may be payable in respect of any transfer involved in the
transfer or delivery of Warrant Certificates or the issuance or
delivery of certificates for BJ Common Stock in a name other than
that of the registered holder of the Warrant Certificate evidencing
BJ Warrants surrendered for exercise or to issue or deliver any
certificate for shares of BJ Common Stock upon the exercise of any
BJ Warrants until any such tax or governmental charge shall have
been paid (any such tax or governmental charge being payable by the
holder of such Warrant Certificate at the time of surrender) or
until it has been established to BJ's satisfaction that no such tax
or governmental charge is due.
Section 9. B.J Common Stock Record Date. Each person in whose
name any certificate for shares of BJ Common Stock is issued upon
the exercise of BJ Warrants shall for all purposes be deemed to
have become the holder of record for the BJ Common Stock
represented thereby on, and such certificate shall be dated, the
date upon which the Warrant Certificate evidencing such BJ Warrants
was duly surrendered and payment of the Exercise 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 BJ
Common Stock transfer books of BJ 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 rn
which the BJ Common Stock transfer books of BJ are open.
Section 10. Adjustment of Exercise Price, Number of Shares of
BJ Common Stock or Number of BJ Warrants. The Exercise Price, the
number of shares covered by such BJ Warrant and the number of BJ
Warrants outstanding are subject to adjustment from time to time as
provided in this Section 10.
(a) In the event BJ shall at any time after the date of this
Agreement (i) declare a dividend on shares of BJ Common Stock
payable in shares of any class of capital stock of BJ,(ii)
subdivide the outstanding shares of BJ Common Stock into a greater
number of shares of BJ Common Stock, (iii) combine the outstanding
shares of BJ Common Stock into a smaller number of shares, or (iv)
issue any shares of capital stock in a reclassification of shares
of the BJ Common Stock including any such reclassification in
connection with a consolidation or merger in which BJ is the
continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or distribution 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 BJ Warrant exercised after such time shall
be entitled to receive the aggregate number and kind of shares of
capital stock which, if such BJ Warrant had been exercised
immediately prior to such date
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and at a time when the BJ Common Stock transfer books of BJ were
open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision
combination or reclassification
(b) In case BJ shall fix a record date for the issuance of
rights, options or warrants to all holders of BJ Common Stock (such
rights, options or warrants not being available to holders of BJ
Warrants) entitling them (for a period expiring within 45 calendar
days after such date of issue) to subscribe for or purchase BJ
Common Stock (or securities convertible into or exercisable or
exchangeable for BJ Common Stock), other than Permitted Issuances
(as defined below), at a price per share of BJ Common Stock (or
having a conversion, exercise or exchange price per share of BJ
Common Stock, in the case of a security convertible into or
exercisable or exchangeable for BJ Common Stock) less than the
Current Market Price (as defined in Section 10(f)) per share of BJ
Common Stock on such record date, the Exercise Price to be in
effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record date
by a fraction of which the numerator shall be the number of shares
of BJ Common Stock outstanding on such record date plus the number
of shares of BJ Common Stock which the aggregate offering price of
the total number of shares of BJ Common Stock so to be offered (or
the aggregate initial conversion, exercise or exchange price of the
convertible, exercisable or exchangeable securities so to be
offered) would purchase at such Current Market Price and of which
the denominator shall be the number of shares of BJ Common Stock
outstanding on such record date plus the number of additional
shares of BJ Common Stock to be offered for subscription or
purchase (or into which the convertible, exercisable or
exchangeable securities so to be offered are initially convertible,
exercisable or exchangeable). In case 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 BJ, whose
determination shall be described in a statement filed with the
Warrant Agent. 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 Exercise Price shall be adjusted to
be the Exercise Price which would then be in effect if such record
date had not been fixed. For purposes of this paragraph (b),
"Permitted Issuances" shall mean any and all issuances of shares of
BJ Common Stock or rights, options or warrants entitling the
holders thereof to subscribe for or purchase BJ Common Stock (or
securities convertible into or exercisable or exchangeable for BJ
Common Stock) pursuant to any stock option, stock purchase or other
employee or director benefit plan of BJ or any of its subsidiaries
approved by stockholders.
(c) In case BJ shall fix a record date for the making of a
dividend or distribution (other than aggregate cash dividends and
distributions not in excess of $.25 per share of BJ Common Stock
for the fiscal year ended September 30, 1995, and then $1.50 for
each 12-month period thereafter, payable out of retained earnings
or earned surplus) to all holders of BJ Common Stock (including any
distribution made in connection with a consolidation or merger in
which BJ is the continuing corporation) or evidences of
indebtedness or assets or subscription rights or warrants
(excluding those referred to in Section 10(b)), the Exercise Price
to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such
record date by a fraction of which the numerator shall be the
Current Market Price (as defined in Section 10(f)) per share of BJ
Common Stock on such record date, less the fair market value (as
determined in good faith by the Board of Directors of BJ, whose
determination shall be described in a statement filed with the
Warrant Agent) of such distribution applicable to one share of BJ
Common Stock, and of which the denominator shall be such Current
Market Price per share of BJ Common Stock. Such adjustment shall be
made successively whenever such a record date is fixed, and in the
event that such distribution is not so made the Exercise Price
shall again be adjusted to be the Exercise Price which would then
be in effect if such record date had not been fixed.
(d) In case a tender offer (a "Tender Offer") made by BJ or
any of its subsidiaries for all or any portion of the BJ Common
Stock shall expire (the "Expiration Time") and the Tender Offer (as
amended upon the expiration thereof) shall require the payment to
stockholders based on the
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acceptance (up to any maximum specified in the terms of the Tender
Offer) of Purchased Shares (as defined below) of an aggregate of
the cash plus other consideration having a fair market value (as
determined by the Board of Directors) as of the Expiration Time of
such Tender Offer that combined with the aggregate of the cash plus
the fair market value (as determined by the Board of Directors) of
consideration payable in respect of any other tender offer
(determined as of the Expiration Time of such other tender offer)
by BJ or any of its subsidiaries for all or any portion of the BJ
Common Stock expiring within the 12 months preceding the expiration
of the Tender Offer and in respect of which no adjustment pursuant
to this clause (d) has been made exceeds 12.5% of the product of
the Current Market Price per share of the BJ Common Stock as of the
Expiration Time of the Tender Offer multiplied by the number of
shares of BJ Common Stock outstanding (including any tendered
shares) at the Expiration Time of the Tender Offer, then, and in
each such case, immediately prior to the opening of business on the
next Trading Day after the date of the Expiration Time of the
Tender Offer, the Exercise Price shall be adjusted so that the same
shall equal the price determined by multiplying the Exercise Price
immediately prior to close of business on the date of the
Expiration Time of the Tender Offer by a fraction (A) the numerator
of which shall be equal to (x) the product of (i) the Current
Market Price per share of the BJ Common Stock as of the Expiration
Time of the Tender Offer and (ii) the number of shares of BJ Common
Stock outstanding (including any tendered shares) at the Expiration
Time of the Tender Offer less (y) the amount of cash plus the fair
market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up
to any maximum specified in the terms of the Tender Offer) of
Purchased Shares (as defined below), and (B) the denominator of
which shall be equal to the product of (x) the Current Market Price
per share of the BJ Common Stock as of the Expiration Time of the
Tender Offer and (y) the number of shares of BJ Common Stock
outstanding (including any tendered shares) as of the Expiration
Time of the Tender Offer less the number of all shares validly
tendered and not withdrawn as of the Expiration Time of the Tender
Offer, and accepted for purchase up to any maximum. For purposes of
this Section 10, the term "Purchased Shares" shall mean such shares
as are deemed so accepted up to any such maximum.
(e) If the rights (the "BJ Rights") outstanding under the
Stockholder Rights Agreement, dated as of January 12, 1994, as
amended, between BJ and First Chicago Trust Company of New York, as
amended (the "Rights Agreement"), shall become exercisable for
shares of Series Two Junior Participating Preferred Stock, par
value $1.00 per share, of BJ ("BJ Preferred Stock") or other
property, the Exercise Price and the number of and kind of
securities or other property issuable upon exercise of each BJ
Warrant shall be appropriately adjusted so that the holder of any
BJ Warrant exercised after such time shall be entitled to receive
the aggregate number and kind of shares of BJ Preferred Stock or
other property which would have been issuable under the BJ Rights
that would have been attached to the shares of BJ Common Stock for
which such BJ Warrant was exercisable immediately prior to the BJ
Rights having become exercisable, upon payment of the same
consideration, if any, payable under such BJ Rights for such shares
or other property.
(f) For the purpose of any computation hereunder, the "Current
Market Price" per share of BJ Common Stock (or per BJ Warrant, for
purposes of Section 13(a) hereof) on any date shall be deemed to be
the average of the daily Closing Prices per share of such BJ Common
Stock (or BJ Warrant, as the case may be) for the 20 consecutive
Trading Days (as such term is hereinafter defined) immediately
prior to such date. 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 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 New York Stock Exchange, Inc. ("NYSE")
or, if such securities are not listed or admitted to trading on the
NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which such securities are listed or
admitted to trading or, if such securities are 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"). If
on any such Trading Day or Days such securities are not quoted by
any such organization, such Trading Day or Days shall be replaced
for purposes of
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the foregoing calculation by the requisite Trading Day or Days
preceding the commencement of such 20 Trading Day period on which
such securities are so quoted. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which
such securities are listed or admitted to trading is open for the
transaction of business or, if such securities are not listed or
admitted to trading on any national securities exchange, a Monday,
Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the State of New York are not authorized or
obligated by law or executive order to close. If the BJ Common
Stock (or BJ Warrant, as the case may be) is not so listed or
traded, the "Current Market Price" per share shall be deemed to be
the fair value per share as determined in good faith by the Board
of Directors of BJ, whose determination shall be described in a
statement filed with the Warrant Agent. For the purpose of any
computation hereunder, the "Warrant Merger Price" means the average
of the midpoint of the daily high and low trading prices of BJ
Warrants, rounded to four decimal places, on a when-issued basis as
reported in The Wall Street Journal's New York Stock Exchange
Composite Transactions Reports, for each of the first 20
consecutive Trading Days in the period commencing 25 Trading Days
prior to the Closing Date or, if the BJ Warrants are not then
admitted to trading on the NYSE on a when-issued basis, as reported
in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities
exchange on which such securities are admitted to trading on a when
issued basis or, if the BJ Warrants are not admitted to trading on
any national securities exchange on a when-issued basis, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by the NASDAQ, of BJ Warrants
on a when-issued basis. If on any such Trading Day or Days the BJ
Warrants are not quoted on a when-issued basis by any such
organization, the 20 Trading Day period referred to above shall be
reduced by the number of such Trading Days on which the BJ Warrants
are not so quoted. If the BJ Warrants are not quoted on a
when-issued basis on any Trading Day during such 20 Trading Day
period, the Warrant Merger Price shall be deemed to be $5.00.
(g) No adjustment in the Exercise 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 10(g) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 10 shall be made to
the nearest cent or the nearest ten-thousandth of a share, as the
case may be. Notwithstanding the first sentence of this Section
10(g), any adjustment required by this Section 10 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 date of the
expiration of the right to exercise any BJ Warrant.
(h) In the event that at any time, as a result of an
adjustment made pursuant to Section 10(a), the holder of any BJ
Warrant thereafter exercised shall become entitled to receive any
shares of capital stock of BJ other than shares of BJ Common Stock,
thereafter the number of such other shares so receivable upon
exercise of any BJ Warrant 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 shares contained
in Section 10(a) through (d) inclusive, and the provisions of
Sections 6, 8, 9 and 12 with respect to the shares of BJ Common
Stock shall apply on like terms to any such other shares.
(i) All BJ Warrants originally issued by BJ subsequent to any
adjustment made to the Exercise Price hereunder shall evidence the
right to purchase, at the adjusted Exercise Price, the number of
shares of BJ Common Stock purchasable from time to time hereunder
upon exercise of the BJ Warrants, all subject to further adjustment
as provided herein.
(j) Unless BJ shall have exercised its election as provided in
Section 10(k), upon each adjustment of the Exercise Price as a
result of the calculations made in Section 10(b), each BJ Warrant
outstanding immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the adjusted
Exercise Price, that number of shares (calculated to the nearest
tenthousandth) obtained by (i) multiplying (x) the number of shares
covered by a BJ Warrant immediately prior to such adjustment by (y)
the Exercise Price in effect immediately prior to such
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adjustment of the Exercise Price and (ii) dividing the product so
obtained by the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(k) BJ may elect on or after the date of any adjustment of the
Exercise Price to adjust the number of BJ Warrants, in substitution
for any adjustment in the number of shares of BJ Common Stock
purchasable upon the exercise of a BJ Warrant. Each of the BJ
Warrants outstanding after such adjustment of the number of BJ
Warrants shall be exercisable for one share of BJ Common Stock.
Each BJ Warrant held of record prior to such adjustment of the
number of BJ Warrants shall become that number of BJ Warrants
(calculated to the nearest ten-thousandth) obtained by dividing the
Exercise Price in effect prior to adjustment of the Exercise Price
by the Exercise Price in effect after adjustment of the Exercise
Price. BJ shall notify each of the record holders of BJ Warrants of
its election to adjust the number of BJ Warrants, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. Such record date may be the
date on which the Exercise Price is adjusted or any day thereafter,
but shall be at least 10 days later than the date of the public
announcement. Upon each adjustment of the number of BJ Warrants
pursuant to this Section 10(k), BJ shall, as promptly as
practicable, cause to be distributed to holders of record of
Warrant Certificates on such record date Warrant Certificates
evidencing, subject to Section 13, the additional BJ Warrants to
which such holders shall be entitled as a result of such
adjustment, or, at the option of BJ, shall cause to be distributed
to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by BJ, new
Warrant Certificates evidencing all the BJ Warrants to which such
holders shall be entitled after such adjustment. Warrant
Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may bear, at
the option of BJ, the adjusted Exercise Price) and shall be
registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public
announcement.
(l) Irrespective of any adjustment or change in the Exercise
Price or the number of shares of BJ Common Stock issuable upon the
exercise of the BJ Warrants, the Warrant Certificates theretofore
and thereafter issued may continue to express the Exercise Price
per share and the number of shares which were expressed upon the
initial Warrant Certificates issued hereunder.
(m) BJ agrees that it will not, by amendment of its
Certificate of Incorporation or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to
be observed or performed hereunder by BJ. Before taking any action
that would cause an adjustment reducing the Exercise Price below
the then par value, if any, of the shares of BJ Common Stock
issuable upon exercise of the BJ Warrants, BJ shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that BJ may, at the option of BJ in its sole
discretion, either (i) validly and legally issue fully paid and
nonassessable shares of such BJ Common Stock or (ii) pay the
equivalent amount of cash, at such adjusted Exercise Price.
(n) In any case in which this Section 10 shall require that an
adjustment in the Exercise Price be made effective as of a record
date for a specified event, BJ may elect to defer until the
occurrence of such event the issuance to the holder of any BJ
Warrant exercised after such record date of the shares of BJ Common
Stock and other capital stock of BJ issuable upon such exercise
over and above the shares of BJ Common Stock and other capital
stock of BJ, if any, issuable upon such exercise on the basis of
the Exercise Price in effect prior to such adjustment; provided,
however, that BJ 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.
(o) Anything in this Section 10 to the contrary
notwithstanding, BJ shall be entitled to make such reductions in
the Exercise Price, in addition to those adjustments expressly
required by this section 10. as and to the extent that it in its
sole discretion shall determine to be advisable in
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order that any event treated for federal income tax purposes as a
distribution of stock or stock rights shall not be taxable to the
recipients.
Section 11. Certification of Adjusted Exercise Price or Number
of Shares of BJ Common Stock. Whenever the Exercise Price or the
number of shares of BJ Common Stock issuable upon the exercise of
each BJ Warrant is adjusted as provided in Sections 10 or 12,BJ
shall (a) promptly prepare a certificate setting forth the Exercise
Price as so adjusted and/or the number of shares of BJ Common Stock
issuable upon exercise of each BJ Warrant as so adjusted, and a
brief statement of the facts accounting for such adjustment, (b)
promptly file with the Warrant Agent and with each transfer agent
for the BJ Common Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Warrant Certificate in
accordance with Section 23.
Section 12. Reclassification, Consolidation, Merger,
Combination, Sale or Conveyance. In case any of the following shall
occur while any BJ Warrants are outstanding: (i) any
reclassification or change of the outstanding shares of BJ Common
Stock (other than a change in par value, or from par value to no
par value, or as covered by Section 10(a)), or (ii) any
consolidation, merger or combination of BJ with or into another
corporation as a result of which holders of BJ Common Stock shall
be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such BJ
Common Stock, or (iii) any sale or conveyance of the property or
assets of BJ as, or substantially as, an entirety to any other
entity as a result of which holders of BJ Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such BJ Common
Stock, then BJ, or such successor corporation or transferee, as the
case may be, shall make appropriate provision by amendment of this
Agreement or by the successor corporation or transferee executing
with the Warrant Agent an agreement so that the holders of the BJ
Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such BJ Warrants, to receive the kind
and amount of securities, cash and other property receivable upon
such reclassification, change, consolidation, merger, combination,
sale or conveyance as would be received by a holder of the number
of shares of BJ Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance.
If the holders of the BJ Common Stock may elect from choices
the kind or amount of securities, cash and other property
receivable upon such reclassification, consolidation, merger,
combination, sale or conveyance, then for the purpose of this
Section 12 the kind and amount of securities, cash and other
property receivable upon such reclassification, consolidation,
merger, combination, sale or conveyance shall be deemed to be the
choice specified by the holder of the BJ Warrant, which
specification shall be made by the holder of the BJ Warrant by the
later of (A) 15 Trading Days after the holder of the BJ Warrant is
provided with a final version of all information required by law or
regulation to be furnished to holders of BJ Common Stock concerning
such choice, or if no such information is required, 15 Trading Days
after BJ notified the holder of the BJ Warrant of all material
facts concerning such specification and (B) the last time at which
holders of BJ Common Stock are permitted to make their
specification known to BJ. If the holder of the BJ Warrant fails to
make any specification, the holder's choice shall be deemed to be
whatever choice is made by a plurality of holders of BJ Common
Stock not affiliated with BJ or any other party to the
reclassification, consolidation, merger, combination, sale or
conveyance. Such new BJ Warrants shall provide for adjustments
which, for events subsequent to the effective date of such new BJ
Warrants, shall be as nearly equivalent as may be practicable to
the adjustments provided for in Section 10 and this Section 12. The
above provisions of this Section 12 shall similarly apply to
successive reclassifications, consolidations, mergers,
combinations, sales or conveyances.
BJ shall mail by first-class mail, postage prepaid, to each
registered holder of a BJ Warrant, written notice of the execution
of any such amendment or agreement. Any new agreement entered into
by the successor corporation or transferee shall provide for
adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in Section 10. The
Warrant
B-17
Agent shall be under no responsibility to determine the correctness
of any provisions contained in such agreement relating either to
the kind or amount of securities or other property receivable upon
exercise of BJ Warrants or with respect to the method employed and
provided therein for any adjustments and shall be entitled to rely
upon the provisions contained in any such agreement. The provisions
of this Section 12 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
conveyances of the kind described above.
Section 13. Fractional BJ Warrants and Fractional Shares of
B.J Common Stock. (a) BJ shall not be required to issue fractions
of BJ Warrants or to distribute Warrant Certificates which evidence
fractional BJ Warrants. In lieu of such fractional BJ Warrants,
there shall be paid to the persons to whom Warrant Certificates
representing such fractional BJ Warrants would otherwise be
issuable an amount in cash (without interest) equal to the product
of such fraction of a B.J W arrant multiplied by the following: (i)
with respect to all fractions of BJ Warrants issued in the Merger,
the Warrant Merger Price and (ii) with respect to all the other
fractions of BJ Warrants, the Current Market Price per whole BJ
Warrant (as defined in Section 10(f)).
(b) BJ shall not be required to issue fractions of shares of
BJ Common Stock upon exercise of BJ Warrants or to distribute stock
certificates which evidence fractional shares of BJ Common Stock.
In lieu of fractional shares, there shall be paid to the registered
holders of Warrant Certificates at the time such Warrant
Certificates are exercised as herein provided an amount in cash
(without interest) equal to the product of such fractional part of
a share of BJ Common Stock multiplied by the Current Market Price
per share of BJ Common Stock (as defined in Section 10(f)).
(c) The holder of a BJ Warrant by the acceptance of the BJ
Warrant expressly waives his right to receive any fractional BJ
Warrant or any fractional share of BJ Common Stock upon exercise of
a BJ Warrant.
Section 14. Right of Action. All rights of action in respect
of this Agreement are vested in the respective registered holders
of the Warrant Certificates, and any registered holder of any
Warrant Certificate, without the consent of the Warrant Agent or of
the holder of any other Warrant Certificate, may, on such holder's
own behalf and for such holder's own benefit, enforce and may
institute and maintain any suit, action or proceeding against BJ to
enforce, or otherwise act in respect of, such holder's right to
exercise the BJ Warrants evidenced by such Warrant Certificate in
the manner provided in such Warrant Certificate and in this
Agreement.
Section 15. Agreement of Warrant Certificate Holders. Every
holder of a Warrant Certificate by accepting the same consents and
agrees with BJ and the Warrant Agent and with every other holder of
a Warrant Certificate that:
(a) the Warrant Certificates are transferable only on the
registry books of the Warrant Agent if surrendered at the principal
office of the Warrant Agent, duly endorsed or accompanied by a
proper instrument of transfer; and
(b) BJ and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute
owner thereof and of the BJ Warrants evidenced thereby
(notwithstanding any notations of ownership or writing on the
Warrant Certificates made by anyone other than BJ or the Warrant
Agent) for all purposes whatsoever and neither BJ nor the Warrant
Agent shall be affected by any notice to the contrary.
Section 16. Warrant Certificate Holder Not Deemed a
Stockholder. No holder, as such of any Warrant Certificate shall be
entitled to vote, receive dividends or distributions on, or he
deemed for any purpose the holder of, BJ Common Stock or any other
securities of BJ which may at any time be issuable on the exercise
or conversion of the BJ Warrants represented thereby, nor shall
anything contained herein or in any Warrant Certificate be
construed to confer upon the holder of any Warrant
B-18
Certificate, as such, any of the rights of a stockholder of BJ 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 consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 24), or to receive dividends or distributions
or subscription rights, or otherwise, until the BJ Warrant or BJ
Warrants evidenced by such Warrant Certificate shall have been
exercised in accordance with the provisions hereof.
Section 17. Concerning the Warrant Agent. BJ agrees to pay to
the Warrant Agent reasonable compensation for all services rendered
by it hereunder and, from time to time, on demand of the Warrant
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.
BJ also agrees to indemnify the Warrant 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 Warrant Agent, for anything done or omitted by the Warrant
Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim of liability in the premises.
The Warrant 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 Warrant Certificate or certificate
for BJ Common Stock or for other securities of BJ, 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.
Section 18. Merger or Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent or any
successor Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent or any successor Warrant
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Warrant Agent or any successor
Warrant Agent, shall be the successor to the Warrant Agent under
this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 21. In case at the
time such successor Warrant Agent shall succeed to the agency
created by this Agreement any of the Warrant Certificates shall
have been countersigned but not delivered, any such successor
Warrant Agent may adopt the countersignature of the predecessor
Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant
Certificates shall not have been countersigned, any successor
Warrant Agent may countersign such Warrant Certificates either in
the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have
been countersigned but not delivered, the Warrant Agent may adopt
the countersignature under its prior name and deliver Warrant
Certificates so countersigned; and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior
name or in its changed name; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
Section 19. Duties of Warrant Agent. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which BJ and the
holders of Warrant Certificates. by their acceptance thereof, shall
be bound:
B-19
(a) The Warrant Agent may consult with legal counsel (who may
be legal counsel for BJ), and the opinion of such counsel shall be
full and complete authorization and protection to the Warrant 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 Warrant Agent shall deem it necessary or desirable
that any fact or matter be proved or established by BJ prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman, President or any Vice
President of BJ and by the Treasurer or any Assistant Treasurer or
the Secretary of BJ and delivered to the Warrant Agent; and such
certificate shall be full authentication to the Warrant Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(d) The Warrant 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 Warrant 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 BJ only.
(e) The Warrant 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 Warrant
Agent) or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by BJ of any covenant or condition
contained in this Agreement or in any Warrant Certificate; nor
shall it be responsible for the adjustment of the Exercise Price or
the making of any change in the number of shares of BJ Common Stock
required under the provisions of Sections 10 or 12 or responsible
for the manner, method or amount of any such change or the
ascertaining of the existence of facts that would require any such
adjustment or change (except with respect to the exercise of BJ
Warrants evidenced by Warrant Certificates after actual notice of
any adjustment of the Exercise Price); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of BJ Common Stock
to be issued pursuant to this Agreement or any Warrant Certificate
or as to whether any shares of BJ Common Stock will, when issued,
be duly authorized, validly issued, fully paid and nonassessable.
(f) BJ 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 Warrant Agent for
the carrying out or performing by the Warrant Agent of the
provisions of this Agreement.
(g) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman or the President or any Vice President
or the Secretary of BJ, 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 Warrant Agent and any shareholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of
the BJ Warrants or other securities of BJ or become pecuniarily
interested in any transaction in which BJ may be interested, or
contract with or lend money to BJ or otherwise act as fully and
freely as though it were not Warrant
B-20
Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for BJ or for any
other legal entity.
(i) The Warrant 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 attorney or agents. and the
Warrant 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 BJ resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
Section 20. Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties under this Agreement upon
30 days' notice in writing mailed to BJ and to each transfer agent
of the BJ Common Stock by registered or certified mail, and to the
holders of the Warrant Certificates by first-class mail. BJ may
remove the Warrant Agent or any successor Warrant Agent upon 30
days' notice in writing, mailed to the Warrant Agent or successor
Warrant Agent, as the case may be, and to each transfer agent of
the BJ Common Stock by registered or certified mail and to the
holders of the Warrant Certificates by first-class mail. If the
Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, BJ shall appoint a successor to the Warrant
Agent. If BJ 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
Warrant Agent or by the holder of a Warrant Certificate (who shall,
with such notice, submit his Warrant Certificate for inspection by
BJ), then the registered holder of any Warrant Certificate may
apply to any court of competent jurisdiction for the appointment of
a new Warrant Agent. Any successor Warrant Agent, whether appointed
by BJ or by such a court, shall be a corporation organized and
doing business under the laws of the United States or of a state
thereof, in good standing, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the time
of its appointment as Warrant Agent a combined capital and surplus
of at least $50,000,000. After appointment, the successor Warrant
Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant
Agent without further act or deed; but the predecessor Warrant
Agent shall deliver and transfer to the successor Warrant 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,
BJ shall file notice thereof in writing with the predecessor
Warrant Agent and each transfer agent of the BJ Common Stock, and
mail a notice thereof in writing to the registered holders of the
Warrant Certificates. However, failure to give any notice provided
for in this Section 20, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor Warrant Agent, as the
case may be.
Section 21. Issuance of New Warrant Certificates.
Notwithstanding any of the provisions of this Agreement or of the
BJ Warrants to the contrary, BJ may, at its option, issue new
Warrant Certificates evidencing BJ Warrants in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Exercise Price per share and the number or kind or
class of shares of stock or other securities or property
purchasable under the several Warrant Certificates made in
accordance with the provisions of this Agreement.
Section 22. Purchase of BJ Warrants by BJ. BJ shall have the
right, except as limited by applicable law or other agreements, to
purchase or otherwise acquire BJ Warrants at such time, in such
manner and for such consideration as it may deem appropriate.
Section 23. Notice of Proposed Actions. In case BJ shall
propose (a) to declare a dividend on shares of BJ Common Stock
payable in shares of capital stock of any class or to make any
other distribution (other than aggregate cash dividends and
distributions not in excess of $.25 per share of BJ Common Stock
for the fiscal year ended September 30, 1995, and then $1.50 for
each 12-month
B-21
period thereafter, payable out of retained earnings or earned
surplus) to all holders of BJ Common Stock (including any
distribution made in connection with a consolidation or merger in
which BJ is the continuing corporation), or (b) to offer rights,
options or warrants to all holders of BJ Common Stock entitling
them to subscribe for or purchase BJ Common Stock (or securities
convertible into or exercisable or exchangeable for BJ Common Stock
or any other securities), or (c) to offer any shares of capital
stock in a reclassification of shares of the BJ Common Stock
(including any such reclassification in connection with a
consolidation or merger in which BJ is the continuing corporation),
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 more than 50% of the assets or net income of BJ
and its subsidiaries (taken as a whole) to, any other Person, or
(e) to effect the liquidation, dissolution or winding up of BJ,
then, in each such case, BJ shall give to each registered holder of
a BJ Warrant, in accordance with Section 24, a notice of such
proposed action, which shall specify the record date for the
purpose of such stock dividend, 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 BJ
Common Stock, 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 BJ Common Stock 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 BJ Common Stock,
whichever shall be the earlier. The failure to give notice required
by this Section 23 or any defect therein shall not affect the
legality or validity of the action taken by BJ or the vote upon any
such action. Unless specifically required by Section 10, the
Exercise Price, the number of shares of BJ Common Stock covered by
each BJ Warrant and the number of BJ Warrants outstanding shall not
be subject to adjustment as a result of BJ being required to give
notice pursuant to this Section 23.
Section 24. Notices. Notices or demands authorized by this
Agreement to be given or made (i) by the Warrant Agent or by the
holder of any Warrant Certificate to or on BJ, (ii) subject to the
provisions of Section 20, by BJ or by the holder of any Warrant
Certificate to or on the Warrant Agent or (iii) by BJ or the
Warrant Agent to the holder of any Warrant Certificate, shall be
deemed given (x) on the date delivered, if delivered personally,
(y) on the first Trading Day following the deposit thereof with
Federal Express or another recognized overnight courier, if sent by
Federal Express or another recognized overnight courier, and (z) on
the fourth Trading Day following the mailing thereof with postage
prepaid, if mailed by registered or certified mail (return receipt
requested), in each case to the parties at the following addresses
i or at such other address for a party as shall be specified by
like notice):
(a) If to BJ, to:
BJ Services Company
5500 Northwest Central Drive
Houston, Texas 77092
Attention: President
(b) If to the Warrant Agent, to:
First Chicago Trust Company of New York
525 Washington Boulevard
Jersey City, New Jersey 07310
Attention: Joann Gorostiola
Assistant Vice President
B-22
(c) If to the holder of any Warrant Certificate, to the
address of such holder as shown on the registry books of BJ.
Section 25. Supplements and Amendments. (a) BJ and the Warrant
Agent may from time to time supplement or amend this Agreement
without the approval of any holders of BJ Warrant Certificates in
order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions with
regard to matters or questions arising hereunder which BJ and the
Warrant Agent may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant
Certificates.
(b) In addition to the foregoing, with the consent of holders
of not less than a majority in number of the then outstanding BJ
Warrants, BJ and the Warrant Agent may modify this Agreement for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Warrant Agreement or
modifying in any manner the rights of the holders of the BJ Warrant
Certificates; provided, however, that no modification of the terms
(including but not limited to the adjustments described in Section
10) upon which the BJ Warrants are exercisable or reducing the
percentage required for consent to modification of this Agreement
may be made without the consent of the holder of each outstanding
BJ Warrant affected thereby.
Section 26. Successors. All covenants and provisions of this
Agreement by or for the benefit of BJ or the Warrant Agent shall
bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 27. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give any Person other than BJ, the
Warrant Agent and the registered holders of the Warrant
Certificates any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and
exclusive benefit of BJ, the Warrant Agent and the registered
holders of the Warrant Certificates.
Section 28. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving
effect to the conflicts of law principles thereof.
Section 29. 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 30. Captions. The caption of the sections of this
Agreement have been inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
B-23
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals
to be hereunder affixed and attested, all as of the day and year
first above written.
B.J. SERVICES COMPANY
By:
Name:
Title:
By:
Title:
FIRST CHICAGO TRUST COMPANY
OF NEW YORK, as Warrant Agent
By:
Name:
Title:
B-24
Exhibit 1 to Warrant Agreement
[Form of Warrant Certificate]
Certificate No. M- Warrants
NOT EXERCISABLE AFTER ,2000
Warrant Certificate
BJ SERVICES COMPANY
This certifies that , or registered
assigns, is the registered owner of the number of BJ Warrants set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Warrant Agreement dated
as of , 1995 [the Closing Date] (the "Warrant
Agreement") between BJ Services Company, a corporation organized
under the laws of the State of Delaware ("BJ"), and First Chicago
Trust Company of New York, a New York limited purpose trust company
(the "Warrant Agent"), to purchase or receive from BJ at any time
after , 1995 [the Closing Date] and prior to 5:00 P.M.
(New York City time) on , 2000 [fifth anniversary of
the Closing Date] at the principal office of the Warrant Agent, or
its successors as Warrant Agent, in New York City, the number of
shares of common stock, par value $.10 per share, of BJ ("BJ Common
Stock") represented hereby to be purchased at $30 per share of BJ
Common Stock (the "Exercise Price"), in each case upon presentation
and surrender of this Warrant Certificate with the Form of Election
to Purchase duly executed. The number of BJ Warrants evidenced by
this Warrant Certificate (and the number of shares of BJ Common
Stock which may be purchased upon exercise thereof) set forth above
and the Exercise Price set forth above are the number and Exercise
Price as of , 1995, based on the shares of BJ Common
Stock as constituted at such date. As provided in the Warrant
Agreement, the Exercise Price and the number of shares of BJ Common
Stock which may be purchased upon the exercise of the BJ Warrants
evidenced by this Warrant Certificate are subject to modification
and adjustment upon the occurrence of certain events.
This Warrant Certificate is subject to all of the terms,
provisions and conditions of the Warrant Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Warrant Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder
of the Warrant Agent, BJ and the holders of the Warrant
Certificates. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent.
This Warrant Certificate, with or without other Warrant
Certificates, upon surrender at the principal office of the Warrant
Agent, may be exchanged for another Warrant Certificate or Warrant
Certificates of like tenor and date evidencing BJ Warrants
entitling the holder to purchase a like aggregate number of shares
of BJ Common Stock, in each case as the BJ Warrants evidenced by
the Warrant Certificate or Warrant Certificates surrendered shall
have entitled such holder to purchase or receive. If this Warrant
Certificate shall be exercised in part, the holder hereof shall be
entitled to receive upon surrender hereof another Warrant
Certificate or Warrant Certificates for the number of BJ Warrants
not exercised.
B-25
BJ shall make a cash payment in lieu of issuing fractional BJ
Warrants or fractional shares of BJ Common Stock, as provided in
the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to
vote, receive dividends or distributions on, or be deemed for any
purpose the holder of, BJ Common Stock or of any other securities
of BJ which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Warrant Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of BJ 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 consent to any corporate
action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Warrant Agreement), or to
receive dividends or subscription rights, or otherwise, until the
BJ Warrant or BJ Warrants evidenced by this Warrant Certificate
shall have been exercised as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Warrant
Agent.
WITNESS the facsimile signature of the proper officers of BJ
and its corporate seal. Dated as of , 199_.
ATTEST: BJ SERVICES COMPANY
Secretary By:
Name:
Title:
Countersigned:
By
Authorized signature
B-26
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Warrant Certificate.)
To First Chicago Trust Company of New York, as Warrant Agent:
The undersigned hereby irrevocably elects to exercise
BJ Warrants represented by this Warrant Certificate to purchase the
shares of BJ Common Stock issuable upon the exercise of such BJ
Warrants and requests that Certificates for such shares be issued
in the name of and delivered to:
Please insert social security
or other identifying number
(Please Print name and address)
If such number of BJ Warrants shall not be all the BJ Warrants
evidenced by this Warrant Certificate, a new Warrant Certificate
for the balance remaining of such BJ Warrants shall be registered
in the name of and delivered to:
Please insert social security
or other identifying number
(Please Print name and address)
Dated:
Signature
(Signature must conform
in all respects to name of holder as
specified on the face of this
Warrant Certificate)
Signature Guaranteed:
B-27
Annex A to Warrant Agreement
ASSIGNMENT FORM
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificates)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto
Name:
(please typewrite or print in block letters)
Address:
this Warrant Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer within the Warrant
Certificate the same on the books of the Company, with full power
of substitution in the premises.
Date ,19 .
Signature
Signature Guaranteed:
Notice
The signature to the foregoing assignment must correspond to
the name as written upon the face of this Warrant Certificate in
every particular, without alteration or enlargement or any change
whatsoever.
B-28
