EXHIBIT 10.3
SUPPLEMENTAL AGREEMENT
SUPPLEMENTAL AGREEMENT, dated as of January 20, 1998,
by and between Occidental Petroleum Corporation, a Delaware
corporation (the "Seller"), and KN Energy, Inc., a Kansas
corporation (the "Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller and the Buyer have entered into a
Stock Purchase Agreement dated as of December 18, 1997 (the
"SPA"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto
in the SPA;
WHEREAS, the Seller and the Buyer desire to supplement
the SPA, including, but not limited to, Section 5.3.7
thereof, with regard to the transfer of MidCon Power
Services Corp., a Delaware corporation ("MPSC"); and
WHEREAS, the Seller and the Buyer have agreed that the
Seller shall cause a dividend to be paid to it of all the
outstanding capital stock of MPSC and that the Seller shall
transfer all the issued and outstanding shares of capital
stock of MPSC to the
Buyer as more fully described in the Stock Transfer
Agreement, substantially in the form of Exhibit I hereto;
and
WHEREAS, the MidCon Corp. ESOP Trust has consented to
and approved the dividend and separate transfer of the MPSC
Shares (as defined in Section 1.2 below);
NOW, THEREFORE, in consideration of, and subject to,
the mutual covenants, agreements, terms and conditions
herein contained, the Parties agree as follows:
ARTICLE I
STOCK TRANSFER AGREEMENT
------------------------
1. Sale of MPSC. The Seller and the Buyer agree to enter
------------
into the Stock Transfer Agreement concurrently with the
execution of this Supplemental Agreement and the Seller
shall cause the following to occur prior to the dividends
contemplated by the Stock Transfer Agreement:
1.1 MidCon Gas Services Corp. (a Delaware corporation
which is a wholly owned subsidiary of MidCon, which is the
sole shareholder of MPSC and which is referred to herein as
"MGS") shall contribute one million eight hundred thousand
dollars to the capital of MPSC;
2
1.2 The Seller shall contribute to MidCon a cash
amount equal to the book value of MGS's investment in all
the issued and outstanding shares of Common Stock of MPSC
("MPSC Shares") determined in accordance with GAAP after
giving effect to the contribution pursuant to Section 1.1.
1.3 Dennis Lawler, an employee of another MidCon
Subsidiary, shall be transferred and become an employee of
MPSC during a period commencing on the date hereof and
ending on the earlier of the closing for the sale by the
Seller of the MPSC Shares to the Buyer pursuant to the Stock
Transfer Agreement (the "MPSC Closing") or the Termination
Date;
1.4 After the dividend of the MPSC Shares to the
Seller pursuant to the Stock Transfer Agreement, MPSC shall
advance the cash contributed to MPSC by MGS to the Seller in
accordance with the MidCon Power Cash Management Agreement
which was entered into between the Seller and MPSC in
accordance with Section 4.1.2 of the Stock Transfer
Agreement.
ARTICLE II
COVENANTS
----------
2.1 Covenants by the Seller.
-----------------------
3
2.1.1 Amendments to Intercompany Agreements.
-------------------------------------
The Seller shall enter into, and shall cause MidCon and MPSC
to enter into, amendments or supplements to the following
Intercompany Agreements to provide the following changes so
as to have MPSC continue as an entity deemed to be a
Subsidiary of MidCon for purposes of such Intercompany
Agreements up to and including the Closing:
(a) Services Agreement. "MidCon Consol" as
------------------
defined in the Services Agreement shall continue to include
MPSC, and the Seller shall cause MPSC to agree to be so
included.
(b) Tax Sharing Agreement. The "MidCon
----------------------
Group" as defined in the Tax Sharing Agreement shall
continue to include MPSC, and the Seller shall cause MPSC to
agree to be so included.
2.1.2 Intercompany Arrangements for the Period
----------------------------------------
Prior to the MPSC Closing. The Seller, with the Buyer's
- ----------------------------
consent, shall, as soon as reasonably practicable, cause
MidCon and MPSC to enter into an agreement similar to the
Services Agreement pursuant to which MidCon shall provide
office space and facilities and similar services to MPSC.
4
2.2 Covenants of Both Parties.
-------------------------
2.2.1 Modification of the SPA. The Seller and
-----------------------
the Buyer hereby agree to the following modifications to the
SPA:
(a) Section 5.3.7 of the SPA. The Seller
------------------------
and the Buyer agree that approval by the FERC shall be
required for the transfer of MPSC to the Buyer and that the
Parties shall file an application for such approval pursuant
to Section 4.2.1 of the Stock Transfer Agreement. The SPA
is hereby amended to delete MPSC from the definition of
"Significant Subsidiary" and Section 5.3.7 of the SPA is
amended to delete the requirement to transfer any employee,
asset or cash of MPSC to the MidCon Management Corp.
(b) Section 5.2.3 of the SPA. The Seller
------------------------
and the Buyer agree that the provisions of Section 5.2.3 of
the SPA shall continue to apply to MidCon and its
Subsidiaries and shall apply independently for all purposes
of that Section and the definitions used therein to MPSC as
if (i) the references to "MidCon" or "MidCon or its
Subsidiaries" are references to MPSC and (ii) references to
the "Closing" and the "Closing Date" are to the MPSC Closing
and the Business Day on which the MPSC Closing shall occur
("MPSC Closing Date"), respectively.
5
(c) Article VI of the SPA. The Seller and
---------------------
the Buyer agree that for all purposes of Article VI of the
SPA, MPSC shall be deemed to be a Subsidiary of MidCon at
all times up to and including the Closing.
(d) Article VIII of the SPA. The Seller and
-----------------------
the Buyer agree that for all purposes of Article VIII of the
SPA MPSC shall be deemed to be a "Significant Subsidiary."
ARTICLE III
TERMINATION
-----------
3.1 Termination. The Parties may terminate this
-----------
Supplemental Agreement before the MPSC Closing as follows:
(a) The Buyer and the Seller may terminate this
Supplemental Agreement by mutual written consent.
(b) Either Party may terminate this Supplemental
Agreement either (i) upon the termination of the SPA, or
(ii) if the MPSC Closing shall not have occurred by the
Termination Date.
6
3.2 Effects of Termination. If this Supplemental
------------------------
Agreement is terminated pursuant to Section 3.1, all further
obligations of the Parties under this Supplemental Agreement
and the Stock Transfer Agreement will terminate.
Each Party's right of termination under Section 3.1 is
in addition to any other rights it may have under the SPA or
otherwise, and the exercise of a right of termination will
not be an election of remedies.
ARTICLE IV
MISCELLANEOUS
-------------
4.1 Preservation of Books and Records.
---------------------------------
(a) Each Party agrees that for the period
specified in subpart (b) such Party shall take all necessary
action to ensure that all corporate books and records of
MPSC with respect to periods ending on or before the MPSC
Closing Date in the possession or control of such Party or
its Affiliates shall be open for inspection by
representatives of the other Party at any time during
regular business hours and that the other Party may during
such statutory period at its expense make such excerpts
therefrom as it may reasonably request.
7
(b) For the period of 10 years following the
Closing Date or such longer period pursuant to Article VI of
the SPA, no Party or its Affiliates shall destroy or give up
possession of any original or any copy of any of the books
and records relating to any matter for which a Party shall
have any continuing responsibility under this Supplemental
Agreement or any agreement contemplated by this Supplemental
Agreement without first offering to the other Party the
opportunity, at its expense, to obtain such original or a
copy thereof. During such period, the Party shall use
reasonable commercial efforts to cooperate with the other
Party and make such books and records available to the
employees and representatives of the other Party to the
extent that the other Party may reasonably require for its
corporate and other business purposes.
4.2 Confidentiality. Each Party and its Affiliates
---------------
shall, and shall cause their respective employees, agents,
accountants, legal counsel and other representatives to
perform and comply with the two Confidentiality Agreements
dated October 9, 1997 and December 16, 1997 respectively
between the Parties.
4.3 Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed given upon
personal delivery, facsimile transmission (which is
confirmed) or delivery by an overnight express courier
service (delivery, postage or freight charges prepaid), or
on the fourth day following deposit in the United
8
States mail (if sent by registered or certified mail, return
receipt requested, delivery, postage or freight charges
prepaid), addressed to the parties at the following
addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to the Seller:
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Attention: General Counsel
Facsimile Number: (310) 443-6195
(b) if to the Buyer:
KN Energy, Inc.
P.O. Box 281304
370 Van Gordon
Lakewood, Colorado 80228-8304
Attention: Vice President
Facsimile Number: (303) 763-3115
4.4 Successors and Assigns. No Party to this
------------------------
Supplemental Agreement may assign any of its rights or
obligations under this Supplemental Agreement without the
express written consent of the other Party hereto. Any
assignment in violation of the foregoing shall be null and
void. Subject to the preceding sentences of this
Section 4.4, the provisions of this Supplemental Agreement
(and, unless otherwise expressly provided therein, of any
document delivered pursuant to or in connection with this
Agreement) shall be binding upon and inure to the benefit of
the Parties and their respective legal representatives,
successors and assigns.
9
4.5 Expenses. Whether or not this Supplemental
--------
Agreement is consummated, all costs and expenses (including
legal fees and expenses) incurred in connection with this
Supplemental Agreement and the transactions contemplated
hereby and thereby shall be paid by the Party incurring such
expense.
4.6 Severability. If any term, provision, covenant or
------------
restriction of this Supplemental Agreement is held by a
court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against the applicable
regulatory policy, the remainder of the terms, provisions,
covenants and restrictions of this Supplemental Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
4.7 Construction; Interpretation.
----------------------------
(a) When a reference is made in this Supplemental
Agreement to an Article, Section, Exhibit or Schedule, such
reference shall be to an Article, Section, Exhibit or
Schedule to this Supplemental Agreement unless otherwise
indicated.
(b) The words "include," "includes" and
"including" when used herein shall be deemed in each case to
be followed by the words "without limitation."
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(c) The headings contained in this Supplemental
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Supplemental Agreement.
(d) The Parties agree that they have been
represented by counsel during the negotiation and execution
of this Supplemental Agreement and, therefore waive the
application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or
other document will be construed against the Party drafting
such agreement or document.
(e) Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all
valid and enforceable rules and regulations promulgated
thereunder, unless the context requires otherwise.
4.8 Entire Agreement; Third Party Beneficiaries. This
-------------------------------------------
Supplemental Agreement, the Stock Transfer Agreement, the
SPA, those certain Confidentiality Agreements by and between
the Seller and the Buyer as more fully described in
Section 4.2 (including the documents and the instruments
referred to herein and therein) and that certain letter
agreement from the Seller to the Buyer dated December 18,
1997 regarding compensation of certain officers of MPSC
(a) constitute the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among
11
the Parties with respect to the subject matter hereof, and
(b) are not intended to confer upon any person other than
the Parties any rights or remedies hereunder.
4.9 Amendment and Modification. This Supplemental
---------------------------
Agreement may not be amended, modified or supplemented, and
no amendment to this Supplemental Agreement shall be
effective, unless evidenced by an instrument in writing
signed by each Party.
4.10 Governing Law. This Supplemental Agreement shall
-------------
be governed and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflicts
of law.
4.11 Waiver of Jury Trial. Each of the Buyer and the
--------------------
Seller hereby irrevocably waive all right to trial by jury
in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to
this Supplemental Agreement or actions of the Buyer and the
Seller in the negotiation, administration, performance and
enforcement hereof.
4.12 Consent to Jurisdiction and Forum Selection. Each
-------------------------------------------
Party hereby irrevocably agrees that any legal action or
proceeding against it or any of its Affiliates arising out
of this Supplemental Agreement may be brought in the courts
of the State of
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Delaware, or of the United States of America District Court
for Delaware and does hereby irrevocably (a) designate,
appoint and empower the Secretary of State of the State of
Delaware to receive for and on behalf of it and its
Affiliates service of process in the State of Delaware, and
(b) consent to service of process outside the territorial
jurisdiction of such courts in the manner permitted by law.
In addition, each Party, on its own behalf and on behalf of
its Affiliates, irrevocably waives (i) any objection which
such Party or its Affiliates may now or hereafter have to
the laying of venue of any suit, action or proceeding
arising out of, or relating to, this Supplemental Agreement
brought in any such court, (ii) any claim that any such
suit, action or proceeding brought in any such court has
been brought in an inconvenient forum, and (iii) the right
to object, with respect to any such claim, suit, action or
proceeding brought in any such court, that such court does
not have jurisdiction over such Party or any other Party.
4.13 Counterparts. This Supplemental Agreement may be
------------
executed in one or more counterparts, each of which shall be
considered one and the same agreement and shall become
effective when two or more counterparts have been signed by
each of the Parties and delivered to the other Party, it
being understood that all Parties need not sign the same
counterpart.
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IN WITNESS WHEREOF, the Seller and the Buyer have
caused this Supplemental Agreement to be signed by their
respective officers thereunder duly authorized, all as of
the date first written above.
OCCIDENTAL PETROLEUM CORPORATION
("Seller")
By: D. P. DE BRIER
----------------------------
Its: Executive Vice President
[Corporate Seal]
Attest
JOHN W. ALDEN
Assistant Secretary
KN ENERGY, INC.
("Buyer")
By: H. RICKEY WELLS
----------------------------
Its:
[Corporate Seal]
Attest
LINDA L. FINLEY
Assistant Secretary
14
EXHIBIT I
---------
STOCK TRANSFER AGREEMENT
STOCK TRANSFER AGREEMENT, dated as of January 20, 1998,
by and between Occidental Petroleum Corporation, a Delaware
corporation (the "Seller"), and KN Energy, Inc., a Kansas
corporation (the "Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller and the Buyer have entered into a
Stock Purchase Agreement dated as of December 18, 1997, as
amended by the Supplemental Agreement dated this date
(herein collectively the "SPA"), for the sale of all the
issued and outstanding shares of capital stock of MidCon
Corp., a Delaware corporation ("MidCon");
WHEREAS, the Seller and the Buyer (herein,
individually, a "Party" and collectively the "Parties")
desire to transfer all the issued and outstanding capital
stock of MidCon Power Services Corp., a Delaware corporation
("MPSC"), from MidCon to the Seller and then, upon
satisfaction of certain conditions, from the Seller to the
Buyer as more fully described herein; and
NOW, THEREFORE, in consideration of, and subject to,
the mutual covenants, agreements, terms and conditions
herein contained, the Parties agree as follows:
ARTICLE I
DIVIDEND
--------
1. Dividend of MPSC Shares. The Seller shall cause the
-----------------------
following to occur as soon as practicable after the
execution of this Stock Transfer Agreement:
1.1 MidCon Gas Services Corp. (a Delaware corporation
which is a wholly owned subsidiary of MidCon, which is the
sole shareholder of MPSC and which is referred to herein as
"MGS") shall dividend to MidCon all of the issued and
outstanding capital stock of MPSC ("MPSC Shares"); and
1.2 MidCon shall dividend the MPSC Shares to the
Seller.
ARTICLE II
TRANSFER OF THE MPSC SHARES
---------------------------
2.1 Transfer of the MPSC Shares. Subject to, and upon
---------------------------
the terms and conditions set forth in this Stock Transfer
Agreement, at the MPSC Closing (as hereinafter defined in
Section 3.1), the Seller shall assign, transfer and convey
to the Buyer, and the Buyer shall acquire from the Seller,
all of the MPSC Shares.
2
2.2 Payment of the Purchase Price. The Buyer shall
-----------------------------
pay to the Seller, as the purchase price for the MPSC
Shares, an amount of cash equal to the book value of the
Seller's investment in the MPSC Shares determined as of the
date of this Stock Transfer Agreement in accordance with
United States generally accepted accounting principles.
2.3 Payment of Loan Balances Following Transfer. The
-------------------------------------------
Buyer shall cause MPSC to pay to the Seller within 30 days
of the MPSC Closing the amount, if any, determined to be
payable by MPSC to the Seller in accordance with the MidCon
Power Cash Management Agreement (as defined below). The
Seller shall pay to MPSC within 30 days of the MPSC Closing
the amount, if any, determined to be payable by the Seller
to MPSC in accordance with the MidCon Power Cash Management
Agreement.
2.4 Investment Purpose. The Buyer is acquiring the
------------------
MPSC Shares for its own account and not with a view to any
sale or distribution thereof in violation of any securities
laws. The Buyer has no present intention of selling,
distributing or otherwise disposing of any portion of the
MPSC Shares in violation of any such laws. The Buyer
acknowledges that the MPSC Shares have not been registered
or qualified under the Securities Act of 1933, as amended,
or any state securities laws and may be sold, assigned,
pledged or otherwise disposed of in the absence of such
registration only
3
pursuant to an exemption from such registration and in
accordance with this Stock Transfer Agreement.
ARTICLE III
THE MPSC CLOSING
----------------
3.1 Time and Place of the MPSC Closing. Subject to
----------------------------------
the satisfaction or waiver of the conditions precedent set
forth herein, the closing of the transactions contemplated
by this Stock Transfer Agreement (the "MPSC Closing") shall
take place at the offices of the Seller, 10889 Wilshire
Boulevard, Los Angeles, California, at 10:00 a.m. Los
Angeles time on February 27, 1998, or at such later Business
Day, place and time as the Parties shall agree (the "MPSC
Closing Date"), but no later than June 30, 1998 or such
other date as the Parties may mutually agree in writing (the
"Termination Date").
3.2 Conditions Precedent to the Obligation of the
------------------------------------------------
Buyer. The obligation of the Buyer to consummate the MPSC
- -----
Closing shall be subject to satisfaction or waiver, at or
prior to the MPSC Closing, of the conditions set forth in
this Section 3.2.
3.2.1 Obligations of the Seller to be
-------------------------------------
Fulfilled. The Seller shall have performed and complied in
- ---------
all material respects with the covenants required by this
Stock Transfer Agreement to be performed and complied with
by the Seller at or prior to the MPSC Closing. The Seller
shall have furnished the Buyer at the MPSC Closing
4
with a certificate dated as of the MPSC Closing Date of two
officers of the Seller to the effect set forth above.
3.2.2 Resignation of the Directors. All
-------------------------------
directors of MPSC shall have tendered their written
resignations, effective as of the MPSC Closing Date, or
their term shall have expired prior thereto.
3.2.3 Transfer of MPSC Shares. The Seller
-----------------------
shall have delivered to the Buyer the certificates which
represent all the MPSC Shares, together with stock powers or
other transfer documents duly endorsed in the name of the
Buyer or its permitted assigns.
3.3 Conditions Precedent to the Obligation of the
------------------------------------------------
Seller. The obligation of the Seller to consummate the MPSC
- ------
Closing shall be subject to satisfaction or waiver, at or
prior to the MPSC Closing, of the conditions set forth in
this Section 3.3.
3.3.1 Obligations of the Buyer to be
-------------------------------------
Fulfilled. The Buyer shall have performed and complied in
- ---------
all material respects with the covenants required by this
Stock Transfer Agreement to be performed and complied with
by the Buyer at or prior to the MPSC Closing. The Buyer
shall have furnished the Seller at the MPSC Closing
5
with a certificate dated as of the MPSC Closing Date of two
officers of the Buyer to the effect set forth above.
3.4 Conditions Precedent to the Obligations of Both
------------------------------------------------
Parties. The obligations of both Parties to consummate the
- -------
MPSC Closing shall be subject to the satisfaction or waiver,
at or prior to the MPSC Closing, of the conditions set forth
in this Section 3.4.
3.4.1 FERC Approval. The Parties shall have
-------------
received approval, pursuant to Section 203 of the Federal
Power Act, from the Federal Energy Regulatory Commission
("FERC"), of the transfer by the Seller and acquisition by
the Buyer of all of the MPSC Shares.
3.4.2 Consents. All Consents necessary for
--------
the consummation of the MPSC Closing shall have been filed,
occurred or been obtained and shall be in effect immediately
prior to and as of the MPSC Closing, except where the
failure to obtain such Consents will not materially impair
the ability of either Party to perform its obligations under
this Stock Transfer Agreement and will not prevent the
consummation of any of the transactions contemplated by this
Stock Transfer Agreement. Any applicable waiting period
imposed by a governmental entity, including that imposed
under the HSR Act, shall have expired or been terminated.
6
3.4.3 Sale of MidCon Capital Stock. All the
----------------------------
issued and outstanding shares of capital stock of MidCon
have been sold by the Seller to the Buyer on or before the
MPSC Closing Date.
3.4.4 Litigation. No temporary restraining
----------
order, preliminary injunction or permanent injunction or
other order precluding, restraining, enjoining, preventing
or prohibiting the consummation of the transactions
contemplated by this Stock Transfer Agreement shall have
been issued by any federal, state or foreign court or other
governmental entity and remain in effect.
3.4.5 Statutory Requirements. No federal,
----------------------
state, local or foreign statute, rule or regulation shall
have been enacted which prohibits the consummation of the
transactions contemplated by this Stock Transfer Agreement
or would make the consummation of such transactions illegal.
ARTICLE IV
COVENANTS
----------
4.1 Covenants by the Seller.
-----------------------
4.1.1 Operation of Business. During the
-----------------------
period from the date of this Stock Transfer Agreement to the
MPSC Closing Date, except as otherwise contemplated by this
Stock Transfer Agreement, after consultation with the Buyer
if so
7
provided below or consented to by the Buyer (which consent
shall not be unreasonably withheld), the Seller will cause
MPSC to:
(a) carry on its business only in the
ordinary course consistent with past practice during the
immediately preceding twelve-month period;
(b) not amend its Certificate of
Incorporation or By-laws;
(c) not acquire by merging or consolidating
with, or purchasing substantially all the assets of, or
otherwise acquiring any business or any corporation,
partnership, association or other business organization or
division thereof which would be material, individually or in
the aggregate, to the business, financial condition or
results of operations of MPSC;
(d) not, except in the ordinary course of
business, sell, lease, or otherwise dispose of, nor
voluntarily encumber, any of its assets which are material,
individually or in the aggregate, to the business or
financial condition or results of operations of MPSC;
(e) except as provided for herein, not
declare, set aside, make or pay any dividend or other
distribution in respect of its capital stock or purchase or
redeem, directly or indirectly, any shares of its capital
stock (other than for cash);
8
(f) not issue or sell any shares of its
capital stock of any class;
(g) not incur any indebtedness for borrowed
money (other than from the Seller), or issue or sell any
debt securities, other than in the ordinary course of
business consistent with past practice during the
immediately preceding twelve-month period;
(h) not (i) grant to any officer or director
any increase in any compensation in any form, other than as
is consistent with prior practice, or in any severance or
termination pay, or (ii) enter into or amend any employment
agreement with an officer, or (iii) amend the terms of any
existing employee benefit plans and agreements (other than
as may be required by applicable law or governmental entity)
or (iv) adopt any new employee benefit plan or arrangement
in each case for which MPSC will be obligated after the MPSC
Closing unless otherwise agreed or unless necessary to place
MPSC employees under the Seller's plans for the period
between the date hereof and the MPSC Closing;
(i) not, except for the transactions
contemplated by this Stock Transfer Agreement, directly or
indirectly solicit proposals or offers from any person
9
or initiate or participate in any discussions with any
person relating to any acquisition or purchase of all or a
material amount of the assets of, or any securities of,
MPSC;
(j) without prior consultation with the
Buyer, not enter into any other contract or commitment
having a value in excess of $50 million;
(j) without prior consultation with the
Buyer, (i) not enter into any fixed price purchases or sales
of electricity unless they are hedged nor (ii) enter into
any commodity futures contract, options or swaps unless the
transactions are a hedge as defined in the Financial
Accounting Standard Board Statement of Financial Accounting
Standards No. 80 or unless the volume in aggregate at any
time does not exceed 16,800 MWhs.
4.1.2 Cash Management.
---------------
Concurrent with the execution of this Stock
Transfer Agreement, the Seller shall enter into, and shall
cause MPSC to enter into an agreement substantially in the
form of Exhibit A hereto, (the "MidCon Power Cash Management
Agreement").
4.2 Covenants of Both Parties.
-------------------------
10
4.2.1 FERC Approval. The Parties agree to
-------------
cause MPSC and KN Marketing, Inc. to file an application for
approval under Section 203 and Notice of Changes in Status
under Section 205 of the Federal Power Act together with
relevant documents with the FERC as soon as practicable
following the execution of this Stock Transfer Agreement to
obtain the required FERC approval of the transfer by the
Seller and acquisition by the Buyer of the MPSC Shares.
4.2.2 Operation of MPSC's Business. All cash
----------------------------
and Deemed Payments (as defined in the MidCon Power Cash
Management Agreement) required to cover costs, or expenses
relating to, or arising from, MPSC's continued operation of
its business, shall be provided in the manner set forth in
the MidCon Power Cash Management Agreement. At the MPSC
Closing, the Buyer shall provide substitute commitments,
guarantees and indemnities, to replace any commitments,
guaranties and indemnities entered into by the Seller to
enable MPSC to perform its business operations. In
connection with the foregoing, the Buyer shall indemnify and
hold harmless the Seller for any liability or obligation
that shall arise from the continued ownership of the MPSC
Shares by the Seller at and after the sale by the Seller of
all the issued and outstanding shares of capital stock of
MidCon to the Buyer.
ARTICLE V
TERMINATION
-----------
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5.1 Termination. The Parties may terminate this Stock
-----------
Transfer Agreement before the MPSC Closing as follows:
(a) The Buyer and the Seller may terminate this
Stock Transfer Agreement in accordance with their mutual
written agreement; or
(b) Either Party may terminate this Stock
Transfer Agreement if the MPSC Closing shall not have
occurred by the Termination Date.
5.2 Effects of Termination. If this Stock Transfer
----------------------
Agreement is terminated pursuant to Section 5.1, all further
obligations of the Parties under this Stock Transfer
Agreement will terminate.
Each Party's right of termination under Section 5.1
will not be an election of remedies.
ARTICLE VI
MISCELLANEOUS
-------------
6.1 Further Assurances. Subject to the terms and
-------------------
conditions herein provided, each of the Parties agrees to
use all reasonable commercial efforts to take, or
12
cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make
effective the transactions contemplated by this Stock
Transfer Agreement, including using all reasonable
commercial efforts to obtain all necessary waivers, consents
and approvals in connection with any governmental
requirements and to effect all necessary registrations and
filings. In case at any time after the MPSC Closing Date
any further action is necessary or desirable to carry out
the purposes of this Stock Transfer Agreement, the proper
officers and/or directors of the Seller, the Buyer or MPSC
shall take all such necessary action.
6.2 Confidentiality. Each Party and its Affiliates
---------------
shall, and shall cause their respective employees, agents,
accountants, legal counsel and other representatives to
perform and comply with the two Confidentiality Agreements
dated October 9, 1997 and December 16, 1997 respectively
between the Parties.
6.3 Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed given upon
personal delivery, facsimile transmission (which is
confirmed) or delivery by an overnight express courier
service (delivery, postage or freight charges prepaid), or
on the fourth day following deposit in the United States
mail (if sent by registered or certified mail, return
receipt requested, delivery, postage or freight charges
prepaid), addressed to the parties at the following
addresses (or at such other address for a party as shall be
specified by like notice):
13
(a) if to the Seller:
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Attention: General Counsel
Facsimile Number: (310) 443-6195
(b) if to the Buyer:
KN Energy, Inc.
P.O. Box 281304
370 Van Gordon
Lakewood, Colorado 80228-8304
Attention: Vice President
Facsimile Number: (303) 763-3115
6.4 Successors and Assigns. No Party to this Stock
----------------------
Transfer Agreement may assign any of its rights or
obligations under this Stock Transfer Agreement without the
express written consent of the other Party hereto. Any
assignment in violation of the foregoing shall be null and
void. Subject to the preceding sentences of this
Section 6.4, the provisions of this Stock Transfer Agreement
(and, unless otherwise expressly provided therein, of any
document delivered pursuant to or in connection with this
Stock Transfer Agreement) shall be binding upon and inure to
the benefit of the Parties and their respective legal
representatives, successors and assigns.
6.5 Expenses. Whether or not this Stock Transfer
--------
Agreement is consummated, all costs and expenses (including
legal fees and expenses) incurred in
14
connection with this Stock Transfer Agreement and the
transactions contemplated hereby and thereby shall be paid
by the Party incurring such expense.
6.6 Severability. If any term, provision, covenant or
------------
restriction of this Stock Transfer Agreement is held by a
court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against the applicable
regulatory policy, the remainder of the terms, provisions,
covenants and restrictions of this Stock Transfer Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
6.7 Construction; Interpretation.
----------------------------
(a) When a reference is made in this Stock
Transfer Agreement to an Article, Section, Exhibit or
Schedule, such reference shall be to an Article, Section,
Exhibit or Schedule to this Stock Transfer Agreement unless
otherwise indicated.
(b) The words "include," "includes" and
"including" when used herein shall be deemed in each case to
be followed by the words "without limitation."
15
(c) The headings contained in this Stock Transfer
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(d) The Parties agree that they have been
represented by counsel during the negotiation and execution
of this Stock Transfer Agreement and, therefore waive the
application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or
other document will be construed against the Party drafting
such agreement or document.
(e) Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all
valid and enforceable rules and regulations promulgated
thereunder, unless the context requires otherwise.
6.8 Entire Agreement; Third Party Beneficiaries. This
-------------------------------------------
Stock Transfer Agreement, the MidCon Power Cash Management
Agreement, the SPA, those certain Confidentiality Agreements
by and between the Seller and the Buyer as more fully
described in Section 6.2 (including the documents and the
instruments referred to herein and therein) (a) constitute
the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the Parties
with respect to the subject
16
matter hereof, and (b) are not intended to confer upon any
person other than the Parties any rights or remedies
hereunder.
6.9 Amendment and Modification. This Stock Transfer
--------------------------
Agreement may not be amended, modified and supplemented, and
no amendment to this Stock Transfer Agreement shall be
effective, unless evidenced by an instrument in writing
signed by each Party.
6.10 Governing Law. This Stock Transfer Agreement
--------------
shall be governed and construed in accordance with the laws
of the State of Delaware, without regard to principles of
conflicts of law.
6.11 Waiver of Jury Trial. Each of the Buyer and the
--------------------
Seller hereby irrevocably waive all right to trial by jury
in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to
this Stock Transfer Agreement or actions of the Buyer and
the Seller in the negotiation, administration, performance
and enforcement hereof.
6.12 Consent to Jurisdiction and Forum Selection. Each
-------------------------------------------
Party hereby irrevocably agrees that any legal action or
proceeding against it or any of its Affiliates arising out
of this Stock Transfer Agreement may be brought in the
courts of the State of Delaware, or of the United States of
America District Court for Delaware and does
17
hereby irrevocably (a) designate, appoint and empower the
Secretary of State of the State of Delaware to receive for
and on behalf of it and its Affiliates service of process in
the State of Delaware, and (b) consent to service of process
outside the territorial jurisdiction of such courts in the
manner permitted by law. In addition, each Party, on its
own behalf, irrevocably waives (i) any objection which such
Party may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of, or relating
to, this Stock Transfer Agreement brought in any such court,
(ii) any claim that any such suit, action or proceeding
brought in any such court has been brought in an
inconvenient forum, and (iii) the right to object, with
respect to any such claim, suit, action or proceeding
brought in any such court, that such court does not have
jurisdiction over such Party or any other Party.
6.13 Counterparts. This Stock Transfer Agreement may be
------------
executed in one or more counterparts, each of which shall be
considered one and the same agreement and shall become
effective when two or more counterparts have been signed by
each of the Parties and delivered to the other Party, it
being understood that all Parties need not sign the same
counterpart.
IN WITNESS WHEREOF, the Seller and the Buyer have
caused this Stock Transfer Agreement to be signed by their
respective officers thereunder duly authorized, all as of
the date first written above.
18
OCCIDENTAL PETROLEUM CORPORATION
("Seller")
By:
-------------------------------
Its:
[Corporate Seal]
Attest
KN ENERGY, INC.
("Buyer")
By:
-------------------------------
Its:
[Corporate Seal]
Attest
19
EXHIBIT A
---------
MIDCON POWER CASH MANAGEMENT AGREEMENT
MIDCON POWER CASH MANAGEMENT AGREEMENT, dated as of
January 20, 1998 (this "Agreement") by and among OCCIDENTAL
PETROLEUM CORPORATION, a Delaware corporation ("Seller"),
and MIDCON POWER SERVICES CORP., a Delaware corporation
("MPSC").
WHEREAS, MPSC is a wholly-owned Subsidiary of the
Seller;
WHEREAS, the Seller currently provides certain
financing, and cash management services to MidCon Corp.
("MidCon"), a Delaware corporation and formerly the indirect
sole shareholder of MPSC;
WHEREAS, MPSC has requested the Seller to continue to
provide financing and cash management services in connection
with MPSC's ongoing business and financial needs;
WHEREAS, in consideration of the Seller's and MPSC's
desire to memorialize their financing and cash management
arrangements as more specifically set forth herein, the
parties hereto have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1
---------
Definitions
-----------
1.1 Definitions. The following capitalized terms used
-----------
in this Agreement shall have the meanings set forth below.
Defined terms in this Agreement shall include in the
singular number the plural and in the plural number the
singular.
"Business Day" shall mean any day not a Saturday,
------------
Sunday or legal holiday or a day on which banking
institutions are authorized or required by law or other
government actions to close in New York City or Los Angeles,
California; provided that the term "Business Day" shall also
exclude any day on which banks are not open for dealings in
Dollar Deposits in the London Interbank Market.
"Closing Date" shall mean the Business Day upon
------------
which the sale by the Seller of all of the issued and
outstanding shares of capital stock of MidCon to KN Energy,
Inc. shall occur.
"Concentration Account" shall mean the bank
----------------------
account of MPSC which reflects the net end-of-day cash
balance of funds collected and disbursed by MPSC.
2
"Deemed Payments" shall mean payments deemed to be
---------------
made under this Agreement (a) by MPSC to (i) the Seller and
(ii) during the period up to, but excluding, the Closing
Date, to MidCon Consol, or (b) to MPSC by the Seller, and
(ii) during the period up to, but excluding, the Closing
Date, by MidCon Consol, as the case may be.
"Facilities" shall mean, collectively, the X
----------
Facility and the Y Facility.
"Intercompany Cash Management Agreement" shall
----------------------------------------
mean the Intercompany Cash Management Agreement dated as of
November 20, 1996 by and among the Seller and MidCon.
"LIBOR Rate" shall mean, for any period, the one
----------
month London Interbank Offered Rate as reported in The Wall
Street Journal for the last business day of the prior month
on which day the London interbank market was open for
dealings.
"Loans" shall mean, collectively, the X Facility
-----
Loans and the Y Facility Loans.
"MGSC" shall mean MidCon Gas Services Corp, a
----
Delaware corporation.
"MidCon Consol" shall mean MidCon and all of its
-------------
Subsidiaries which are part of its consolidated financial
statements during the period after the date of this
Agreement.
"MPSC Obligations" shall mean all amounts owing to
----------------
the Seller from time to time under or in connection with
this Agreement including, without
3
limitation, the net outstanding amount of the Y Facility
Loans, together with all accrued and unpaid interest
thereon.
"MPSC Closing Date" shall mean the Business Day on
-----------------
which the MPSC Closing as defined in Section 3.1 of the
Stock Transfer Agreement shall occur.
"Net Outstanding Balance" shall mean as of any
------------------------
date and for any Loan the balance of such Loan, after giving
effect to (i) the netting of payments and Deemed Payments
under the X Facility and Y Facility against one another, as
contemplated pursuant to Section 2.4, (ii) the recognition
of the Loans in accordance with Sections 2.5 and 2.6 and
(iii) if such date is the end of a month or the MPSC Closing
Date, the Deemed Payments recognized in accordance with
Sections 2.2, 2.3, 2.7 and 2.10.
"Oxy Consol" shall mean the Seller and all of its
----------
consolidated Subsidiaries other than MidCon Consol.
"Seller's Obligations" shall mean all amounts
---------------------
owing by the Seller to MPSC from time to time under or in
connection with this Agreement including, without
limitation, the net outstanding amount of the X Facility
Loans, together with all accrued and unpaid interest
thereon.
"Stock Transfer Agreement" shall mean the Stock
-------------------------
Transfer Agreement dated as of January [15], 1998 by and
between the Seller and KN Energy, Inc.
4
"X Facility" shall mean the loan facility provided
----------
to the Seller by MPSC pursuant to Section 2.2.
"X Facility Loans" shall mean loans by MPSC to the
----------------
Seller pursuant to Section 2.2.
"Y Facility" shall mean the loan facility provided
----------
to MPSC by the Seller pursuant to Section 2.3.
"Y Facility Loans" shall mean loans by the Seller
----------------
to MPSC pursuant to Section 2.3.
ARTICLE 2
---------
Facilities
----------
2.1 On and after the date hereof until the
earlier of the MPSC Closing or the termination of the Stock
Transfer Agreement, MPSC hereby engages the Seller to
provide, and the Seller hereby agrees to provide or cause to
be provided to and for the benefit of MPSC the financing and
cash management services the Seller currently provides to
MidCon Consol.
2.2 X Facility Loans. (a) Commencing on the date
----------------
hereof to but not on or after the MPSC Closing Date, MPSC
agrees, subject to the terms and provisions of this
Agreement, to make loans to the Seller (such loans,
individually an "X Facility Loan" and collectively the "X
Facility Loans"). MPSC shall make X Facility Loans on each
Business Day in an aggregate principal amount which
5
equals (i) the net excess cash balance in the Concentration
Account, if positive, (ii) any other amounts transferred to
the Seller as of the close of business on each such Business
Day and (iii) any Deemed Payments made from time to time by
MidCon Consol (prior to the Closing) and by the Seller to
MPSC. The Seller shall cause any interest bearing
principal balance due to MPSC from MGSC as of the close of
business on the last day prior to the date hereof to be
deemed to be repaid as of the date of this Agreement, with
MPSC deemed to have advanced such amount to the Seller as an
X Facility Loan on such date. The X Facility Loans shall,
for the period up to the Closing, include a Deemed Payment
as at the end of each month and as at the MPSC Closing for
all amounts which are Deemed Payments under the Intercompany
Cash Management Agreement from MidCon Consol to Oxy Consol
for amounts owed by MidCon Consol to MPSC. The Seller
promises to repay all X Facility Loans from time to time
owing to MPSC in accordance with the terms of this
Agreement, and such X Facility Loans shall automatically be
repaid by the application against such outstanding amount of
any outstanding balance of the Y Facility Loans under the Y
Facility. Notwithstanding the foregoing, the Net
Outstanding Balance of the X Facility Loans shall be
determined after the application of Section 2.4.
(b) The date and amount of each X Facility
Loan made by MPSC to the Seller, and each payment or Deemed
Payment made by the Seller to MPSC on account of any X
Facility Loan, shall be recorded by the
6
Seller and MPSC on their respective books of account, it
being understood, however that failure by the Seller or MPSC
to make, or any error in making, any such record shall not
(i) affect the Seller's liability hereunder in respect of
any Seller's Obligations, or (ii) constitute the discharge
of the Seller for any payment or Deemed Payment by the
Seller to MPSC on account of any Seller's Obligation.
2.3 Y Facility Loans. (a) Commencing on the
----------------
date hereof to, but not including, the MPSC Closing Date,
the Seller agrees, subject to the terms and provisions of
this Agreement, to make loans to MPSC (such loans,
individually a "Y Facility Loan" and collectively the "Y
Facility Loans"). The Seller shall make Y Facility Loans on
each Business Day in an aggregate principal amount which
equals (i) the amount of funds required to eliminate any
negative balance in the Concentration Account in accordance
with Section 2.6 and (ii) any Deemed Payments made from time
to time from MPSC to the Seller or to MidCon Consol. The
Seller shall cause any interest bearing principal balance
due to MGSC from MPSC as of the close of business on the
last day prior to the date hereof to be deemed to be repaid
as of the date of this Agreement, with Seller deemed to have
advanced such amount to MPSC as a Y Facility Loan on such
date. The Y Facility Loans shall, for the period up to the
Closing, include a Deemed Payment as at the end of each
month and as at the MPSC Closing for all amounts which are
Deemed Payments under the Intercompany Cash
7
Management Agreement from Oxy Consol to MidCon Consol for
amounts owed by MPSC to MidCon Consol. MPSC irrevocably and
unconditionally promises to repay all Y Facility Loans from
time to time owing to the Seller in accordance with the
terms of this Agreement.
(b) The date and amount of each Y Facility
Loan made by the Seller to MPSC, and each payment made
thereon, shall be recorded by the Seller and MPSC on their
respective books of account, it being understood, however,
that failure by the Seller or MPSC to make, or any error in
making, any such record shall not (i) affect MPSC's
liability hereunder in respect of any MPSC Obligations, or
(ii) constitute the discharge of MPSC for any payment or
Deemed Payment by MPSC to the Seller on account of any MPSC
Obligation.
2.4 Right of Offset and Netting of Balances. In
---------------------------------------
respect of the X Facility and the outstanding X Facility
Loans and the Y Facility and the outstanding Y Facility
Loans, the Seller and MPSC, as the case may be, shall have
the right of offset, exercised at any time, against the
other of any amounts owed by MPSC to the Seller, and by the
Seller to MPSC, as the case may be, which offset shall be
deemed a prepayment of outstanding amounts under such
Facilities. Payments and Deemed Payments under the X
Facility and the Y Facility will be netted against the other
on a daily basis to provide a Net Outstanding Balance, if
any, under one of such Facilities.
8
2.5 Payments to the Seller from the Concentration
---------------------------------------------
Account. (i) On each Business Day, MPSC agrees to direct
- -------
its concentration bank to transfer the excess cash, if any,
at the end of any Business Day from its Concentration
Account to one or more accounts of the Seller at such bank
or banks as may from time to time be designated by the
Seller. All such funds so transferred, after giving effect
to the application of such amounts against the amounts under
Section 2.4, shall be deemed an X Facility Loan under this
Agreement.
(ii) The Seller shall, on a daily basis,
credit MPSC on its books of account for cash received from
the Concentration Account. The Seller shall, consistent
with its current practice, use the same standard of care
with respect to all funds received by it from MPSC as the
Seller uses for its own funds.
2.6 Payments to MPSC from the Seller. (i) On
--------------------------------
each Business Day, the Seller agrees to transfer funds to
the Concentration Account to eliminate any negative balance,
in such account at the end of any Business Day. All such
funds so transferred, after giving effect to the application
of such amounts against the amounts under Section 2.4 shall
be deemed a Y Facility Loan under this Agreement.
9
(ii) MPSC shall, on a daily basis, credit the
Seller on its books of account for cash received in its
Concentration Account from the Seller. MPSC shall,
consistent with its current practice, use the same standard
of care with respect to all funds received by it on behalf
of the Seller and MPSC uses for its own funds.
2.7 Repayment of Loans. (i) The net outstanding
------------------
amount of each Loan shall become due and payable in full on
the MPSC Closing Date.
(ii) Payment of the Loan Balance. Within 30
---------------------------
days after the MPSC Closing, MPSC shall pay the amount, if
any, by which the Y Loans outstanding as of the MPSC Closing
exceed the X Loans outstanding at such date, plus accrued
interest in accordance with Section 2.9, and the Seller
shall pay the amount, if any, by which the X Loans
outstanding as of the MPSC Closing exceed the Y Loans
outstanding at such date, plus accrued interest in
accordance with Section 2.9
(iii) Application of Funds.
(a) Deemed Payments made on behalf of
obligations due to and from the Seller and MPSC, including
all amounts due under this
10
Agreement and cash flows to and from the Seller and MPSC,
will in each case be reflected as X Facility Loans and Y
Facility Loans. Deemed Payments shall be recognized on
dates as required in this Agreement.
(b) Funds received by the Seller from
MPSC under this Agreement will be applied, first, to
repayment of amounts outstanding under the Y Facility, and
second, as an X Facility Loan to the Seller under Section
2.2.
(c) Funds received by MPSC from the
Seller under this Agreement will be applied, first, to
repayment of amounts outstanding under the X Facility, and
second, as a Y Facility Loan to MPSC under Section 2.3.
2.8 Evidence of Debt. (a) The Seller and MPSC
----------------
shall maintain an account or accounts evidencing the
indebtedness of MPSC to the Seller and of the Seller to
MPSC, as the case may be, resulting from each Loan, from
time to time, including the amounts of principal and
interest payable and paid from time to time under this
Agreement.
(b) The entries made in the accounts
maintained pursuant to paragraph (a) of this Section 2.8
shall, to the extent permitted by
11
applicable law, be prima facie evidence of the existence of
the Seller's Obligations and MPSC Obligations therein
recorded; provided, however, that the failure of the Seller
or MPSC to maintain such accounts or any error therein shall
not in any manner affect the obligation to repay the Loans
in accordance with their terms.
2.9 Interest Rate. Net outstanding amounts in
-------------
respect of the Facilities shall accrue interest at the per
annum rates set forth below:
(a) Net Outstanding Balance in respect of
each X Facility Loan shall bear interest at a rate per annum
equal to the LIBOR Rate plus 0.25%.
(b) Net Outstanding Balances in respect of
each Y Facility Loan shall bear interest at a rate per annum
equal to the LIBOR Rate plus 0.75%.
2.10 Calculation of Net Outstanding Balances. (a)
---------------------------------------
Interest on Net Outstanding Balances in respect of the X
Facility and the Y Facility shall be calculated on the
weighted average daily Net Outstanding Balance, if any, of
each such Facility.
12
(b) The amount of interest calculated for
any Loan shall be paid as a Deemed Payment and included in
the beginning outstanding balance of either an X Facility
Loan or a Y Facility Loan, as applicable, as of the first
day of the next succeeding month or the MPSC Closing Date,
whichever is earlier.
2.11 Computation of Interest. Interest shall be
-----------------------
computed, with respect to the LIBOR Rate, on the basis of a
year of 360 days and actual days elapsed.
ARTICLE 3
---------
Miscellaneous
-------------
3.1 Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES.
13
(b) Any legal action or proceeding with
respect to this Agreement and any action for enforcement of
any judgment in respect thereof may be brought in the courts
of the state of New York or of the United States of America
for the District of New York, and, by execution and delivery
of this Agreement, MPSC hereby accepts for itself and in
respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof. MPSC irrevocably
consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified
mail, postage prepaid, to MPSC at its address set forth
opposite its signature below. MPSC hereby irrevocably
waives any objection which it may now or hereafter have to
the laying of venue or any of the aforesaid actions or
proceedings arising out of or in connection with this
Agreement brought in the courts referred to above and hereby
further irrevocably waives and agrees not to plead or claim
in any such court that any such action or proceeding brought
in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of the Seller to serve
process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against MPSC in any
other jurisdiction.
3.2 Assignment. Neither this Agreement nor any
----------
right granted hereunder shall be assigned by either party
either voluntarily or by operation of
14
law without the other party's written consent, which may be
granted or withheld in such party's sole discretion, and any
attempted assignment without such consent shall be void and
of no effect whatsoever.
3.3 Amendment, Waiver, Etc. This Agreement may
-----------------------
be amended, waived or modified only by an instrument
executed by all the parties hereto. No failure or delay on
the part of the Seller in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right,
power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be
available to the Seller. Any waiver of any departure by
MPSC from the terms of any provision of this Agreement,
shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on
MPSC in any case shall entitle MPSC to any other or further
notice or demand in similar or other circumstances.
3.4 Headings. The section headings and
--------
subheadings contained in this Agreement are for reference
purposes only and will not affect in any manner the meaning
or interpretation of this Agreement.
3.5 Notices. Any notices or other communications
-------
provided for under this Agreement (and, unless otherwise
expressly provided therein, under
15
any document delivered pursuant to this Agreement) shall be
given in writing and shall be deemed duly given upon (a)
transmitter's confirmation of receipt of a facsimile
transmission, (b) confirmed delivery by a standard overnight
carrier or when delivered by hand or (c) the expiration of
five business days after the day when mailed by certified or
registered mail, postage prepaid, addressed to the parties
at the following addresses (or at such other address as the
parties hereto shall specify by like notice):
(A) To the Seller:
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, CA 90024
Attention: General Counsel
Telecopier No: (310) 443-6684
(B) To MPSC:
MidCon Power Services Corp.
701 East 22nd Street
Lombard, IL 60148-5072
Attention: Vice President
Telecopier No: (630) _________
3.6 Counterparts. For the convenience of the
------------
parties, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
16
3.7 Severability. If any term, provision,
------------
covenant or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in
full force and effect to the fullest extent permitted by law
and shall in no way be affected, impaired or invalidated.
3.8 Further Assurances. MPSC agrees that at any
------------------
time and from time to time, upon the request of the Seller,
MPSC will execute and deliver to the Seller such further
instruments and documents, and do such further acts and
things, as the Seller may reasonably request in order to
effectuate fully the purposes of this Agreement.
3.9 Entire Agreement. This Agreement and the
----------------
Stock Transfer Agreement constitute the entire agreement
between the parties hereto with respect to the subject
matter hereof and supersedes all prior documents,
understandings and agreements, oral or written, relating to
this transaction. No promises, representations, warranties
or covenants not included in this Agreement have been or are
relied upon by any party hereto.
3.10 Binding Agreement. This Agreement shall
------------------
become effective when it shall have been executed by the
Seller and MPSC and shall be binding
17
upon and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
IN WITNESS WHEREOF, each party hereto has caused its
duly authorized officer to execute and deliver this
Agreement as of the date first above written.
OCCIDENTAL PETROLEUM CORPORATION
By__________________________________
Name:
Title:
MIDCON POWER SERVICES CORP.
By____________________________
Name:
Title:
18