EXHIBIT 2.2
ATTACHMENT XIV
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STOCK PURCHASE AND SHAREHOLDER AGREEMENT
By and Between
TOSCO CORPORATION
and
UNION OIL COMPANY OF CALIFORNIA
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Dated as of January 15, 1997
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STOCK PURCHASE AND SHAREHOLDER AGREEMENT
THIS STOCK PURCHASE AND SHAREHOLDER AGREEMENT, is dated as of January 15,
1997 ( "Agreement"), between and among TOSCO CORPORATION, a Nevada corporation
("Tosco"), and UNION OIL COMPANY OF CALIFORNIA, a California corporation
("Union").
RECITALS
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WHEREAS, Tosco and Union have entered into a Sale and Purchase
Agreement for the business and assets of the 76 Products Company dated December
14, 1996 ("Sale and Purchase Agreement"), pursuant to which Tosco agreed to buy
and Union agreed to sell the business and assets that constitute the 76 Products
Company segment of Union ("76 Products' Business and Assets"); and
WHEREAS, the Sale and Purchase Agreement provides that a portion of
the purchase price for the 76 Products Business and Assets may be payable in
Common Stock of Tosco, $.75 par value; and
WHEREAS, Tosco and Union have entered into an Escrow Agreement dated
January 15, 1997 ("Escrow Agreement"), and, pursuant to the Sale and Purchase
Agreement, deposited this Agreement into escrow.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms
shall have the following meanings (such meanings to be equally applied to both
the singular and plural forms of the terms defined); all terms of this Agreement
that are not defined specifically herein shall have the meaning assigned to them
in the Sale and Purchase Agreement:
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person.
"Agreement" shall have the meaning set forth in the preamble hereof.
"Board" shall mean the board of directors of Tosco.
"Business Day" shall mean a day, other than a Saturday or a Sunday,
when commercial banks are open for business in Los Angeles, California, and New
York City, New York.
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"Closing" shall have that meaning set forth in Section 10(a) of the
Sale and Purchase Agreement.
"Common Stock" shall mean the shares of Tosco common stock, par value
of $.75, delivered to Union pursuant to Section 2 of this Agreement and which at
the relevant date is beneficially owned by Union or an Affiliate of Union, and
all shares of such common stock issued pursuant to a stock split, dividend,
reorganization, reclassification, or recapitalization of such common stock.
"Derivative Security" shall mean a security issued by Union or any one
or more of its Affiliates which is convertible, exchangeable or exercisable for
Common Stock.
"Escrow Account" shall have the meaning set forth in Section 3(b) of
the Escrow Agreement.
"Escrow Agent" shall have the meaning set forth in the Preamble of the
Escrow Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended. Each reference to the Exchange Act or a rule or regulation adopted
under the Exchange Act shall mean the Exchange Act or the rule or regulation as
in effect at the time for application of a provision of this Agreement.
"Market Price" shall mean the average of the daily averages of the
high and low trading prices for Purchaser common stock reported on the New York
Stock Exchange Composite tape for the ten business days preceding the Closing
Date, but in no case less than $45 per share unless Tosco elects, by execution
and delivery of Supplement No. 1 attached to this Agreement, to issue sufficient
shares of Common Stock such that the Market Value is equal to (i) the Base
Purchase Price pursuant to Section 3(a) of the Sale and Purchase Agreement,
minus (ii) the fair market value of the cash and marketable securities (other
than the right to receive Common Stock) in the Escrow Account on the Closing
Date.
"Market Value" shall mean the Market Price multiplied by the number of
shares of Common Stock to be delivered.
"Person" shall mean any corporation, limited liability company,
natural person, firm, joint venture, partnership, trust, unincorporated
organization, enterprise, other legal entity, government or any department or
agency of any government.
"Securities Act" shall mean the Securities Act of 1933, as amended.
Each reference to the Securities Act or a rule or regulation adopted under the
Securities Act shall mean the Securities Act or the rule or regulation as in
effect at the time for application of a provision of this Agreement.
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"Shareholder" shall mean any holder of shares of Common Stock.
2. Purchase and Sale. At Closing, Tosco will deliver to Union, as partial
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consideration, a number of shares of Common Stock, to be determined as follows:
The number of shares shall equal:
(a) the Base Purchase Price pursuant to Section 3(a) of the Sale
and Purchase Agreement, minus the fair market value of cash and
marketable securities (other than the right to receive Common
Stock) in the Escrow Account on the Closing Date,
Divided by
(b) the Market Price.
3. Representations and Warranties of Union.
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(a) Union (i) is a qualified institutional buyer, (ii) is aware that
the sale of the Common Stock to it is being made in reliance upon an exemption
to registration under the Securities Act, and (iii) is acquiring such Common
Stock for its own account;
(b) Union understands that the Common Stock has not been registered
under the Securities Act and may not be reoffered, resold, pledged or otherwise
transferred by Union except (a)(i) to a person who Union reasonably believes is
a qualified institutional buyer acquiring for its own account or for the account
of a qualified institutional buyer in a transaction meeting the requirements of
Rule 144A under the Securities Act, (ii) pursuant to an exemption from
registration under the Securities Act, (iii) in an offshore transaction
complying with Rule 903 or Rule 904 of Regulation S under the Securities Act; or
(iv) in a transaction registered under the Securities Act, and (b) in accordance
with all applicable securities laws of the states of the United States and other
jurisdictions;
(c) The certificates evidencing the Common Stock will bear legends to
the following effect, unless Tosco determines otherwise in compliance with
applicable law:
(i) "THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(i) TO A PERSON WHO UNION REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (ii) PURSUANT TO
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AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, (iii) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT; OR (iv) IN A TRANSACTION REGISTERED UNDER
THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS."
(ii) "THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A STOCK PURCHASE AND
SHAREHOLDERS AGREEMENT, DATED AS OF JANUARY 15, 1997 (THE
"SHAREHOLDERS AGREEMENT", A COPY OF WHICH MAY BE OBTAINED FROM TOSCO),
THE SHARES ARE TRANSFERRABLE ONLY IN ACCORD WITH AND SUBJECT TO THE
CONDITIONS OF THE SHAREHOLDERS AGREEMENT, AND, ONCE TRANSFERRED BY
UNION TO ANY PERSON, NOT AN AFFILIATE OF UNION, OWNING LESS THAN 5% OF
TOSCO'S COMMON STOCK AFTER THE TRANSFER, ARE NOT SUBJECT TO THE
SHAREHOLDERS AGREEMENT."
4. Covenants of Union. Union agrees as follows:
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(a) Promise to Liquidate. Union shall undertake to sell, distribute or
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otherwise dispose of the Common Stock as soon as reasonably practical in light
of market conditions so as to maximize the price received by Union upon
disposition of all of the Common Stock. In making its decisions concerning
timing and method of any disposition of Common Stock, Union shall consult with a
nationally recognized investment banking firm and be fully protected in relying
on the advice of any such firm.
(b) Share Voting. Union shall arrange for the Common Stock to be
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present at all shareholders' meetings of Tosco and shall vote its shares in
proportion, for, against and in abstention, to the votes of the other
shareholders present at such meeting, if the vote relates to a matter on which
the interest of Union and the interests of the other shareholders are reasonably
similar. If any Person solicits written consent for action from shareholders of
Tosco, Union shall deliver to the Person soliciting such consent, a written
consent which shall, at a time that the written consent becomes effective,
consents to the action by a percentage of the Common Stock that is equal to the
percentage by which all other shares, not held by Union consented to the action.
(c) Standstill Provision. Union shall not acquire any common stock of
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Tosco or securities convertible into common stock of Tosco nor shall Union
propose to Tosco or any Person any acquisition transaction (excluding
transactions in the ordinary course of business of the type previously conducted
by Union and Tosco) between Union and Tosco and/or the Tosco security holders
involving any of their respective securities or assets unless Tosco shall have
requested in writing that Union make such a proposal.
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(d) Passivity Provision. Union shall not, directly or indirectly:
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(i) seek representation on or seek to influence Tosco's Board of Directors;
(ii) solicit or participate in soliciting proxies or actions by
written consent with respect to any matter presented to the shareholders of
Tosco;
(iii) encourage any third party to seek control of Tosco;
(iv) propose a slate of directors in opposition to any slate of nominees
proposed by management or the Board of Directors of Tosco; or
(v) without consent of Tosco, sell Common Stock to anyone who, after
completion of such sale, would own more than 5% of the common stock outstanding,
except in the case of sale into a public tender offer available to shareholders
generally and except a sale to underwriters who purchase in the ordinary course
of their business with a view toward subsequent resale (other than resale to
anyone who such underwriter knows, after completion of such sale, would own more
than 5% of the common stock outstanding).
5. Covenants of Tosco. Tosco agrees as follows:
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(a) Share Listing. Tosco shall list the Common Stock on the New York Stock
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Exchange.
(b) Best Efforts. Tosco shall use its best efforts to obtain shareholder
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approval for the issuance of Common Stock.
(c) Accountant's Letters. Tosco shall deliver(i) to Union at Closing a
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letter from Tosco's independent public accountants which shall be in the form
permitted by Statement on Auditing Standards No. 75, and (ii) to each person who
would be entitled to receive, and who requests, a comfort letter pursuant to
Statement on Auditing Standards Nos. 72 and 76 at the closing of any other
transaction in Common Stock, in each case applying procedures no more burdensome
than those described in the form of comfort letter customarily delivered by
Tosco's independent public accountants in connection with underwritten public
offerings of Tosco common stock.
(d) Sale or Disposition of Common Stock. Tosco acknowledges that Union may
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dispose of Common Stock in one or more of several methods, including but not
limited to: (i) a registered offering of Common Stock or Derivative Securities;
(ii) an offering of Common Stock or Derivative Securities under Rule 144A of the
Securities Act; (iii) an offering of Common Stock or Derivative Securities under
Regulation S of the Securities Act; or (iv) a distribution of Common Stock to
shareholders of Union and its Affiliates in a transaction which is either
required to be registered under the Securities Act or is exempt from
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registration under the Securities Act. Tosco shall do all things reasonable or
beneficial in order to assist Union in selling or disposing of the Common Stock,
including the following:
(i) If Union has sold Common Stock or Derivative Securities in
reliance on a private placement exemption, Tosco agrees that it will not solicit
any offer to buy or offer to sell the Common Stock by means of any form of
general solicitation or general advertising (as defined in Regulation D under
the Securities Act) or in any manner involving a public offering within the
meaning of 4(2) of the Securities Act ;
(ii) Tosco shall not engage in any directed selling efforts with
respect to the Common Stock within the meaning of Regulation S under the
Securities Act and Tosco and each such person acting on behalf of Tosco has
complied and will comply with the offering restrictions requirement of
Regulation S;
(iii) If Union sells Derivative Securities in a transaction
exempt from registration pursuant to Rule 144A under the Securities Act, then
during the three year period following the last closing date of a sale by Union,
Tosco shall make available, if it is not then subject to Section 13 or 15(d) of
the Exchange Act, upon request, to any seller of the Common Stock or Derivative
Securities, the information concerning Tosco specified in Rule 144A(d)(4) under
the Securities Act, (so long as such requirement is necessary in order to permit
holders of the Common Stock or Derivative Securities to effect resales under
Rule 144A); and
(iv) Tosco shall not sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) which could be integrated with the sale of the Common Stock or
any Derivative Security in a manner which would require the registration of the
Common Stock or any Derivative Security under the Securities Act.
(e) Standstill Provision. Tosco shall not acquire any common stock of
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Unocal Corporation, a Delaware corporation and holder of all of the outstanding
stock of Union ("Unocal"), or securities convertible into common stock of Unocal
nor shall Tosco propose to Unocal or any Person any acquisition transaction
(excluding transactions in the ordinary course of business of the type
previously conducted by Union and Tosco) between Unocal and Tosco and/or their
security holders involving any of their respective securities or assets unless
Union shall have requested in writing that Tosco make such a proposal.
(f) Conflict with Articles or Bylaws. Tosco agrees that if any term or
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provision of this Agreement is inconsistent or in conflict with the terms and
provisions of its Articles of Incorporation or Bylaws, as may be amended from
time to time, Tosco shall abide by the terms and provisions hereof and, if
necessary, to the extent within its control, cause the conflicting provisions in
the Articles or Bylaws to be amended accordingly.
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6. Grant of Registration Rights.
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(a) Union is entitled to demand registration of Common Stock for
aggregate proceeds of a minimum of $200 million per demand, except if Union
possesses less than a $200 million value of Common Stock in which case Union may
demand registration of its remaining balance of Common Stock, but, in any event,
Union is entitled to not less than two demand registrations. Notwithstanding the
foregoing:
(i) If Tosco shall furnish to Union, upon Union's request for a
demand registration, a certificate signed by the Chairman of the Board of Tosco
stating that in the good faith judgment of the Board of Directors, it would be
seriously detrimental to an equity or debt offering by Tosco or any other
corporate transaction by Tosco, in either case for which Tosco had made
substantial preparation before the date of receipt of Union's request for
registration pursuant to this Section and it is therefore essential to defer the
filing of such registration statement, Tosco shall have the right to defer such
filing for the minimum period of time necessary to eliminate the detriment to
Tosco, provided however that each such deferral shall not exceed a period of
more than ninety (90) days and all such deferrals in any twelve (12) month
period shall not exceed one hundred and twenty (120) days; and
(ii) Tosco shall not be required to make a registration statement
effective with the SEC pursuant to a demand registration by Union within one
hundred and eighty (180) days of the effective date of the registration
statement relating to a previous demand.
(b) If Tosco proposes to file any registration relating to a public
equity offering solely for cash, Tosco shall, at such time, promptly give Union
written notice of such registration. Upon the written request of Union given
within twenty (20) days after mailing of such notice by Tosco, Tosco shall cause
to be registered under the Securities Act all of the Common Stock that Union has
requested to be registered unless the registration statement relates to a firm
commitment underwriting arrangement. In that case, Tosco shall consult with the
managing underwriters and Union and shall use its best efforts to include the
shares of Common Stock requested to be registered by Union.
7. Mechanical Provisions. (a) Whenever required to effect the registration
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of any Common Stock, Tosco shall:
(i) Prepare and file with the SEC a registration statement, as
expeditiously as reasonably possible, and in any case within twenty (20) days,
with respect to such Common Stock and use its best efforts to cause such
registration statement to become effective, and, upon the request of Union, keep
such registration statement effective for up to ninety (90) days, unless in the
reasonable opinion of counsel to Union, some longer period is necessary to
effect the method of distribution of the Common Stock or Derivative Securities
selected by Union;
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(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(iii) Furnish to Union such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Common Stock owned by them;
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by Union, provided
that Tosco shall not be required in connection therewith or as a condition
thereto to qualify to do business or, except as required under the Securities
Act, to file a general consent to service of process in any such states or
jurisdictions;
(v) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form including indemnity obligations, with the managing underwriter of
such offering. Union shall also enter into and perform its obligations under
such an agreement;
(vi) Notify Union at any time when a prospectus relating thereto
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
(vii) Cause all Common Stock registered pursuant hereunder to be
listed on each securities exchange or automated quotation system on which
similar securities issued by Tosco are then listed; and
(viii) If the method of distribution selected by Union is an
underwritten public offering, and if the managing underwriter determines that a
roadshow would be beneficial to the success of the offering, prepare a roadshow
presentation and make those executive officers selected by the managing
underwriter available for meetings with investors and analysts in locations
selected by the managing underwriter.
(b) Union will make such information available to Tosco concerning the
76 Assets as is necessary in the opinion of counsel to Tosco to complete the
registration in compliance with the Securities Act.
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8. Indemnification; Contribution. In the event the sale or distribution of
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any shares of Common Stock by Union are included in a registration statement
filed by Tosco:
(a) Tosco agrees to indemnify and hold harmless Union, its directors,
officers and each person, if any, who controls Union within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by Union or
any such controlling person in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the registration statement or any amendment
thereof, any preliminary prospectus or the final prospectus (as amended or
supplemented if Tosco shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to Union furnished
to Tosco in writing by Union expressly for use therein.
(b) Union agrees to indemnify and hold harmless Tosco, its directors,
its officers who sign the registration statement and each person, if any, who
controls Tosco within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from Tosco to Union, but only with reference to information relating to Union
furnished to Tosco in writing by Union expressly for use in the registration
statement (including any preliminary prospectus, the final prospectus or any
amendments or supplements thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 8, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
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and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Union, in the case of parties indemnified pursuant to
paragraph (a) above, and by Tosco in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there is a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of Tosco on the one hand and of Union on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of Tosco on the one hand and Union on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Tosco or by Union and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The obligations of Tosco and Union under this Section shall
survive the completion of any offering of Common Stock in a registration
statement under this Section, and otherwise.
9. Underwriting Expenses. Union shall bear and pay all third-party,
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out-of-pocket costs of the underwriting incurred by Tosco in the case of a
registration statement filed pursuant to Section 6(a), if those costs are
incurred in the same manner as Tosco would incur in an underwritten transaction
on its own behalf. Tosco shall be responsible for the expenses of the
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underwriting in the case of a registration statement filed pursuant to Section
6(b) other than those additional expenses (such as the additional registration
fee) that are incurred as a result of the inclusion of Common Stock. In advance
of filing a registration statement pursuant to Section 6(a), however, Tosco
shall present a good faith estimate to Union and shall meet and confer with
Union regarding the expenses to be incurred. In all cases, Union shall be
responsible for the underwriting discount and commission on the Common Stock
sold by Union.
10. Termination.
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(a) The Agreement shall terminate and be of no further force and
effect as to each particular share of Common Stock, and the legend specified in
Section 3(c)(ii) shall be removed from any certificate evidencing such share,
immediately upon the earliest to occur of the following events: (i) the sale or
transfer by Union of such Common Stock to any Person or Persons, other than to a
Person that is an Affiliate of Union or (ii) January 15, 2007;
(b) The Agreement shall terminate and be of no further force and
effect as to Union immediately upon the earliest to occur of the following
events: (i) the sale or transfer by Union of that amount of Common Stock which
causes Union to own less than 5% of the outstanding shares of Common Stock or
(ii) January 15, 2007;
(c) Upon Termination of this Agreement as to Union or as to any
particular share of Common Stock, the legends defined in Section 3(c) of this
Agreement shall be removed from those shares which are no longer subject to this
Agreement;
(d) Notwithstanding the provisions of Section 10(a) or (b) above, the
registration rights granted in Section 6 of this Agreement shall terminate when
all of the Common Stock could be sold under Rule 144 (or successor rule) without
any volume limitations.
11. Agreement to Perform Necessary Acts. Union and Tosco shall do any and
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all things, take any and all actions, perform any further acts and execute and
deliver any further documents that may be reasonably necessary, whether under
any applicable law, the Articles and Bylaws of Tosco or otherwise, to carry out
and effectuate the provisions of this Agreement;
12. Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of New York.
13. Integration. This Agreement constitutes the entire agreement and
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understanding of Tosco and Union with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings with respect
thereto.
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14. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. Titles and Subtitles. The titles and subtitles used in this Agreement
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are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
16. Notices. Unless otherwise provided herein, any notice required or
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permitted under this Agreement shall be given in writing or by facsimile and
shall, subject to the provisos set forth below, be deemed effectively given (i)
upon personal delivery to the party to be notified at the address indicated for
such party on the signature page hereof, (ii) on the next Business Day after it
is deposited with a recognized overnight courier service servicing the locale of
the addressee, designated for overnight delivery, prepaid and addressed to the
party to be notified at the address indicated for such party on the signature
page hereof, or (iii) upon transmission to such party at its facsimile number
indicated for such party on the signature page hereof (with electronic
acknowledgment of receipt and a copy thereof sent by overnight courier in
accordance with clause (ii) above); provided, however, that any such notice
shall be sent to such other address or facsimile number as such party may
designate by ten (10) days' advance notice to the other party.
17. Enforcement Expenses. If any action at law or in equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
18. Amendments and Waivers. Except as expressly provided in this Agreement,
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neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than upon the written consent of all of (i) Tosco and (ii) the
holders of at least a majority of the Common Stock. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
Common Stock and Tosco. In the event that an underwriting agreement is entered
into between Tosco and any holder of Common Stock, and such underwriting
agreement contains terms differing from this Agreement as to any such holder,
the terms of such underwriting agreement shall govern.
19. No Reliance on Other Parties. Each party hereto has voluntarily
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undertaken its obligations to the other parties hereto under this Agreement and
each of the other contracts and instruments referred to herein. Each party
hereto represents and warrants that it has reviewed and understands each of this
Agreement and such other documents and has discussed each such document with its
legal counsel (and other advisors, if any) so that such party is satisfied that
it is aware of its risks and the significance of each such document. Each party
acknowledges and agrees that it is not relying upon any representation,
warranty, understanding or obligation of any other party hereto that is not
expressly stated in this Agreement or any other contract or instrument referred
to herein.
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20. Severability. If one or more provisions of this Agreement are held to
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be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
21. Business Days. If any date set forth herein as the final date (for
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purposes of payment, notice or otherwise) is not a Business Day, then such final
date shall be deemed to be the next succeeding Business Day. Time is of the
essence under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TOSCO CORPORATION
a Nevada corporation
By
---------------------------------
Name:
Title:
Address for Notices:
Tosco Corporation
72 Cummings Point Road
Stamford, Connecticut 06902
Attn: Wilkes McClave III, Esq.
General Counsel
(203) 977-1005 (Phone)
(203) 964-3187 (Fax)
UNION OIL COMPANY OF CALIFORNIA
a California corporation
By
--------------------------------
Name:
Title:
Address for Notices:
UNOCAL Corporation
2141 Rosecrans Avenue, Suite 4000
El Segundo, California 90245
Attn: Neal E. Schmale
Chief Financial Officer
(310) 726-7621 (Phone)
(310) 726-7806 (Fax)
cc: Dennis P.R. Codon, Esq.
General Counsel
(310) 726-7651 (Phone)
(310) 726-7815 (Fax)
SUPPLEMENT NO. 1 TO
STOCK PURCHASE AND SHAREHOLDER AGREEMENT
Tosco Corporation hereby elects that the $45 per share limitation
contained in the definition of Market Price set forth in Section 1, on page 2,
of the Stock Purchase and Shareholder Agreement dated January 15, 1997 shall not
apply.
IN WITNESS WHEREOF, Tosco Corporation has executed this as of the 15th
day of January, 1997.
TOSCO CORPORATION
a Nevada corporation
By
---------------------------------
Name:
Title: