Exhibit 2.3
CLOSING AGREEMENT
THIS CLOSING AGREEMENT (this "Agreement"), dated as of August 16, 2001, is
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entered into by and among CABOT OIL & GAS CORPORATION, a Delaware corporation
("Acquiror" or "Cabot"), COG COLORADO CORPORATION, a Colorado corporation and
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wholly-owned subsidiary of Acquiror ("Merger Sub"), CODY COMPANY, a Colorado
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corporation ("Cody Company"), and CODY RESOURCES LP, a Colorado limited
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partnership ("Cody Resources"), in its capacity as Shareholder Representative
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and Attorney-in-Fact for all of the shareholders of Cody Company (the
"Shareholders"). Acquiror and Merger Sub are sometimes referred to herein as
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the "Acquiror Companies" and the Acquiror Companies, Cody Company, the
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Shareholders, and Cody Resources are referred to herein individually as a
"Party" and collectively as the "Parties." All capitalized terms not otherwise
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defined herein shall have the meanings ascribed thereto in the Merger Agreement.
RECITALS
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WHEREAS, the Parties have entered into that certain Agreement and Plan of
Merger dated June 20, 2001, as amended by that certain Amendment to Agreement
and Plan of Merger dated July 10, 2001 (as amended, the "Merger Agreement");
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WHEREAS, the Parties now desire to enter into this Agreement so as to
memorialize certain amendments and agreements with respect to the Merger
Agreement that the Parties agreed to prior to Closing;
WHEREAS, the provisions of this Agreement in no way diminish the rights and
obligations of the Parties under the provisions of the Merger Agreement that are
not amended by this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the Parties agree as follows:
ARTICLE I
SPECIFIC AGREEMENTS
Section 1.01. Closing Date / Determination Date. The Closing shall occur
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on Thursday, August 16, 2001, at 9:00 a.m. (Denver time), and the Determination
Date shall be Friday, August 10, 2001, for all purposes of the Merger Agreement.
Section 1.02. Title Defects / Interest Additions. Prior to the Closing
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(i) Acquiror will not submit a Defect Notice with respect to any Title Defect
or an Environmental Defect Notice with respect to any Environmental Defect
pursuant to section 7.01 or section 7.04 of the Merger Agreement, (ii) Cody will
not submit any claim of an Interest Addition as to any Asset pursuant
to section 7.03 of the Merger Agreement, and (iii) there will not be any
adjustment to the Merger Consideration for Title Defect Adjustments,
Environmental Adjustments, or Interest Addition Adjustments pursuant to section
2.05(a) or section 2.05(e) of the Merger Agreement. If, following the Closing,
Acquiror provides a Post-Closing Defect Notice pursuant to section 8.14 of the
Merger Agreement or asserts a claim for indemnification under section 8.08(b) of
the Merger Agreement for any breach of the representations and warranties
contained in section 4.09 of the Merger Agreement, the Shareholders shall have
seven days from receipt of such Post-Closing Defect Notice or such notice of
environmental indemnification claim to assert in writing, in accordance with the
procedures set forth in the Merger Agreement, Interest Additions pursuant to
section 7.03 of the Merger Agreement. To the extent the aggregate amount of
Acquiror's Post-Closing Defects and environmental indemnification claims (as
such amounts are either agreed to by the Shareholders or determined in
accordance with the provisions of section 8.14 or section 8.08, respectively, of
the Merger Agreement) exceed the Cody Energy Indemnification Deductible, any
Interest Addition calculated in accordance with section 7.03 of the Merger
Agreement (as either agreed to by Acquiror or determined in accordance with the
dispute resolution provision of Article XI) shall offset any amounts due
Acquiror from such Post-Closing Defects or environmental indemnification claims.
Section 1.03. Positive Balance Sheet Adjustment. At the Closing, the net pre-
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closing adjustments to the Merger Consideration under section 2.05 of the Merger
Agreement shall equal a positive adjustment of $346,664 as a result of (i) a
Positive Balance Sheet Adjustment of $432,348 relating to decreases in accounts
payable to third-parties with respect to the C&K partnerships and (ii) a
Negative Balance Sheet Adjustment of $85,684 relating to the amounts of two Duke
Energy invoices and one Tricon invoice that were received prior to March 31,
2001, and not accrued on the March 31, 2001 Cody Energy balance sheet. Except
as expressly provided in the Agreement Regarding Canadian Tax Liability Issue
among the Parties, dated the date hereof, no other adjustments to the Merger
Consideration will be made prior to or at the Closing.
Section 1.04. Executive Equity Appreciation Plan Payment And Holdback
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Distribution Agreement.
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(a) If Cody Resources is required to make one or more payments
to the "Executives" under the Executive Equity Appreciation Plan Payment And
Holdback Distribution Agreement, dated August 8, 2001, among Cody Company, Cody
Energy, Cody Resources, Rose M. Maestas, Gerald R. McLeland, George M. Simmons,
Geoff C. Solich and Dan R. Taylor (the "Distribution Agreement") that constitute
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an Additional Payment (as defined in the Distribution Agreement) under the
Distribution Agreement, and due to such Additional Payment (or an item giving
rise to such Additional Payment), Cabot or an Affiliate of Cabot receives a
deduction or credit which Cabot or an Affiliate of Cabot is entitled to retain
under the Merger Agreement and which Cabot or an Affiliate of Cabot would not
otherwise have received had such Additional Payment not occurred, then Cabot or
such Affiliate of Cabot shall pay, at the time Cabot or such Affiliate of Cabot
actually receives such Tax savings, to the Shareholder Representative the actual
Tax savings produced by such deduction or credit. The amount of any such Tax
savings for any period shall be the amount of the actual reduction in Taxes
reflected on any Return for such period as compared to the Taxes that would have
been reflected on such
Return in the absence of such deduction or credit. Any deduction or credit not
resulting in an actual Tax savings for the taxable period to which it relates or
for any earlier period shall be carried forward to succeeding taxable years or
carried back to preceding taxable years until used to the extent permitted by
law.
(b) Cabot shall compute the amount of any such Tax savings
payment required under Section 1.04(a) and certify the accuracy of such Tax
savings payment to the Shareholder Representative which certificate shall be
signed by the Chief Financial Officer of Cabot. If within 15 days of such
certification the Shareholder Representative does not agree with the amount of
such Tax savings payment, then Cabot and the Shareholder Representative shall
each appoint a Tax Expert, and the two Tax Experts so appointed shall select a
third Tax Expert to resolve the dispute. The Tax Experts may review Cabot's and
its Affiliates' Tax Returns to compute such amount but must agree in writing on
terms reasonably acceptable to Cabot that any review of such Returns will be
confidential and that it will not share the contents of such Returns with any
person other than Cabot and the Shareholder Representative. The majority of the
Tax Experts shall issue a certification of their decision (in a form reasonably
satisfactory to the Shareholder Representative) that the amount computed by them
is accurate under the provisions of Section 1.04(a). The decision of a majority
of the Tax Experts shall be binding on the Parties. All payments pursuant to
this Section 1.04 shall be made within 30 days after the later of (i) the filing
of the applicable Return for the period in which such deduction or credit
results in a reduction in the Taxes paid by the entity receiving such deduction
or credit and (ii) the decision by a majority of the Tax Experts under this
Section 1.04(b). All Tax savings payments pursuant to this Section 1.04 shall be
treated by the Parties as additional Merger Consideration. The costs of such Tax
Experts shall be borne equally by Cabot and the Shareholder Representative.
Section 1.05. Access to Records. If Cabot submits a Post-Closing Defect
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Notice pursuant to section 8.14 of the Merger Agreement or a claim for
indemnification pursuant to section 8.08 of the Merger Agreement, Cabot shall
provide the Shareholder Representative, its officers, directors, employees,
accountants, consultants, legal counsel, agents and other representatives
reasonable access at reasonable times in accordance with Cabot's reasonable
procedures to Acquiror's and its Subsidiaries' books and records related to such
Post-Closing Defect or such indemnification claim. Such access shall be subject
to the provisions of section 6.04(c) of the Merger Agreement and all information
reviewed pursuant to this Section 1.05 shall be deemed Confidential Information
under section 6.04(d) of the Merger Agreement. Cabot agrees to maintain such
records so that they are reasonably accessible at Cabot's offices for one year
after the Closing Date; however, if a Post-Closing Defect Notice is delivered or
an indemnification claim asserted within such one-year period, the records
related to such notice or claim shall be retained until such defect or claim is
cured or resolved pursuant to the dispute resolution procedures of Article XI of
the Merger Agreement.
Section 1.06. FCC License Transfer. The Parties acknowledge that Federal
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Communications Commission ("FCC") consent is required to transfer FCC Wireless
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License, Call Sign WNKE 697 (the "License"), from Cody Company d/b/a A Bar A
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Ranch to Cody Resources and that such consent has not been obtained as of the
date of this Agreement. The appropriate FCC assignment document, FCC Form 603,
has been submitted to, but has not yet been approved by the FCC. Acquiror, Cody
Company, and Cody Resources each agree to
execute and deliver after the Closing such further instruments and to take such
further actions as may be reasonably requested by any other such party to
accomplish the transfer of the License to Cody Resources and the approval
thereof by the FCC.
Section 1.07. Excess Cody Energy Distributions. Each of sections 2.05(b),
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2.05(c), 2.06(a), 2.07(c) and 6.01(a) of the Merger Agreement address certain
distributions by Cody Energy to Cody Company in excess of certain Cody Energy
related Tax obligations. The Parties currently estimate that the amount by
which Cody Energy Adjustment Distributions exceed Cody Energy Adjustment Tax
Liabilities is $5,567,501. Acquiror and Cody Company have entered into that
certain letter agreement, dated August 16, 2001 (the "Section 2.07(c)
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Agreement"), concerning, among other things, the treatment of the "Section
2.07(c) Negative Adjustment" (as defined in the Section 2.07(c) Agreement) in
accordance with sections 2.07(c) and 2.07(d) of the Merger Agreement. The
Parties agree that the Section 2.07(c) Agreement and sections 2.07(c) and
2.07(d) of the Merger Agreement completely resolve all issues among the Parties
as to distributions by Cody Energy to Cody Company in excess of Cody Energy
related Tax obligations and that any adjustments related to such Tax obligations
shall be resolved by the Section 2.07(c) Agreement and sections 2.07(c) and
2.07(d) of the Merger Agreement. There shall be no adjustments to the Merger
Consideration at the Closing pursuant to section 2.05(b), section 2.05(c),
section 2.06(a) or section 6.01(a) of the Merger Agreement or indemnification
claims pursuant to section 8.08 of the Merger Agreement with respect to such
distributions.
Section 1.08. Data Room Participants. Exhibit A attached hereto sets
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forth all parties that received confidential document packages from the Cody
Energy data room and the status of the return of those materials.
Section 1.09. Employees. Notwithstanding the provisions of section 8.05
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of the Merger Agreement, the Parties agree that all Terminated Employees and
Cody Energy Employees who are participants in the Supplemental Executive
Retirement Plan shall receive payment of their benefit under such plan as soon
as administratively practicable following the Closing and that payment of
benefits under the Transaction Bonus Plan and Equity Appreciation Incentive Plan
may be made by certified check or wire transfer.
Section 1.10. Language Clarifications.
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(a) Section 2.01(d). The reference in the first line of section
2.01(d) of the Merger Agreement to "All shares of the Cody Company Common Stock"
shall be amended to refer to "All shares of the common stock of Merger Sub."
(b) Section 8.08(f)(ii)(B). Section 8.08(f)(ii)(B) of the Merger
Agreement is amended to include the phrase ", with respect to Cody Energy
Liabilities," in the third line, between the words "Section 8.08(b) and" and
"8.08(d)."
(c) Section 8.11(j). Section 8.11(j) of the Merger Agreement is
amended to provide that the second sentence thereof shall read in its entirety
as follows:
"If requested by the Cody Company Tax Representative or Acquiror, and if
the request meets conditions (w), (x), (y) or (z) of this Section 8.11(j),
Cody Company shall file an amended Return or a refund claim with respect to
a Pre-Closing Period of Cody Company (referred to as an "Amended
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Filing").";
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and to provide that the third sentence of Section 8.11(j) shall begin with the
term "Cody Company" in the fifth line thereof.
(d) Section 12.02(c). Notices given to the Shareholders or the
Shareholders Representative pursuant to section 12.02(c) of the Merger Agreement
shall include a copy to:
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203
Attention: Charles B. Bruce, Jr.
Telephone: 303-866-0600
Facsimile: 303-866-0200
(e) Article IV Disclosure Schedule. The headings to the
disclosure schedules with respect to Article IV of the Merger Agreement (the
"Article IV Disclosure Schedules") include a reference to representations of the
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Shareholders. The Parties acknowledge and agree that despite such references in
the Article IV Disclosure Schedules, the Shareholders did not make
representations in the Merger Agreement with regard to Article IV thereof.
(f) Table of Appendices, Exhibits and Schedules. The Parties
acknowledge and agree that the Merger Agreement did not have attached to it
either a Schedule B (Permitted Encumbrances) or a Schedule 2.08 (Closing Balance
Sheet Allowances).
Section 1.11. Satisfaction of Conditions. The Parties agree that by
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carrying out the Closing in accordance with the Merger Agreement and this
Agreement, all conditions of the Closing are hereby deemed to have been
satisfied or waived in accordance with Article IX of the Merger Agreement.
ARTICLE II
MISCELLANEOUS
Section 2.01. Compliance with Section 10.04 of the Merger Agreement. The
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Parties agree that this Agreement amends the Merger Agreement in accordance with
and in compliance with section 10.04 of the Merger Agreement, and each Party
represents and warrants that it has taken, and covenants that it will undertake,
any and all actions necessary so that the amendments made by this Agreement are
validly made in compliance with section 10.04 of the Merger Agreement.
Section 2.02. Effect of Agreement. Except as expressly set forth herein,
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this Agreement does not alter or modify any right or obligation any Party has
under the Merger Agreement, and
all terms and provisions of the Merger Agreement not otherwise expressly amended
or altered by this Agreement shall remain in full force and effect.
Section 2.03. Counterparts. This Agreement may be executed in multiple
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counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement to be
effective as of the date first set forth above.
ACQUIROR
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CABOT OIL & GAS CORPORATION, a Delaware corporation
By: /s/ Ray R. Seegmiller
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Title: Chairman of the Board, Chief Executive Officer and President
MERGER SUB
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COG COLORADO CORPORATION, a Colorado corporation
By: /s/ Ray R. Seegmiller
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Title: Chairman of the Board, Chief Executive Officer and President
CODY COMPANY
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CODY COMPANY, a Colorado corporation
By: /s/ Brown W. Cannon, Jr.
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Title: President
CODY RESOURCES
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CODY RESOURCES LP, a Colorado limited partnership,
as Shareholder Representative under the Merger
Agreement and Attorney-in-Fact for the Shareholders
By: Cody Resources Management LLC,
a Colorado limited liability Company,
its general partner
By: /s/ Brown W. Cannon, Jr.
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Title: President