Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
HOWELL CORPORATION,
HOWELL ACQUISITION CORP.,
AND
VOYAGER ENERGY CORP.
AUGUST 22, 1997
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TABLE OF CONTENTS
ARTICLE I
THE MERGER; THE SURVIVING CORPORATION...........................................................1
1.1. THE MERGER.............................................................................1
1.2. ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING CORPORATION......................2
1.3. DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION....................................2
1.4. CLOSING................................................................................2
1.5. EFFECTIVE TIME.........................................................................2
1.6. FURTHER ASSURANCES.....................................................................2
ARTICLE II
CONVERSION OR CANCELLATION OF SHARES............................................................3
2.1. VOYAGER COMMON STOCK AND VOYAGER PREFERRED STOCK.......................................3
2.2. NEWCO COMMON STOCK.....................................................................4
2.3. EXCHANGE OF VOYAGER COMMON STOCK AND VOYAGER PREFERRED STOCK FOR MERGER CONSIDERATION..4
ARTICLE III
REPRESENTATIONS AND WARRANTIES..................................................................5
3.1. REPRESENTATIONS AND WARRANTIES OF VOYAGER..............................................5
(a) CORPORATE ORGANIZATION AND QUALIFICATION......................................5
(b) AUTHORIZED CAPITAL............................................................5
(c) CORPORATE AUTHORITY...........................................................6
(d) NO CONFLICTS OR VIOLATIONS....................................................6
(e) LICENSES; COMPLIANCE WITH LAWS................................................6
(f) FINANCIAL STATEMENTS; RESERVE REPORT..........................................7
(g) ABSENCE OF CERTAIN CHANGES....................................................7
(h) GOVERNMENTAL FILINGS AND CONSENTS.............................................7
(i) LITIGATION....................................................................8
(j) UNDISCLOSED LIABILITIES.......................................................8
(k) EMPLOYMENT AND NONCOMPETITION AGREEMENTS......................................8
(l) MATERIAL CONTRACTS............................................................8
(m) POWERS OF ATTORNEY AND CERTAIN AUTHORIZED PERSONS.............................9
(n) PROPERTIES....................................................................9
(o) PATENTS, COPYRIGHTS, SERVICE MARKS AND TRADEMARKS.............................9
(p) INSURANCE.....................................................................9
(q) EMPLOYEES....................................................................10
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(r) EMPLOYEE BENEFIT PLANS.......................................................10
(s) TRANSACTIONS WITH AFFILIATES.................................................10
(t) ENVIRONMENTAL MATTERS........................................................10
(u) TAX MATTERS..................................................................13
(v) FINANCIAL ADVISORS...........................................................15
(w) RELATIONS WITH CUSTOMERS AND SUPPLIERS.......................................15
(x) ABSENCE OF CERTAIN COMMERCIAL PRACTICES......................................15
(y) BOOKS AND RECORDS............................................................15
(z) DISCLOSURE...................................................................16
(aa) MATERIALITY..................................................................16
3.2. REPRESENTATIONS AND WARRANTIES OF HOWELL AND NEWCO....................................16
(a) CORPORATE ORGANIZATION AND QUALIFICATION.....................................16
(b) CORPORATE AUTHORITY..........................................................17
(c) NO CONFLICTS OR VIOLATIONS...................................................17
(d) GOVERNMENTAL FILINGS AND CONSENTS............................................17
(e) FINANCIAL ADVISORS...........................................................17
3.3. DISCLOSURE LETTER; AMENDMENTS.........................................................17
ARTICLE IV
COVENANTS......................................................................................18
4.1. CERTAIN COVENANTS OF VOYAGER..........................................................18
(a) INTERIM OPERATIONS OF VOYAGER................................................18
(b) NEGATIVE COVENANTS...........................................................18
(c) OTHER OPERATIONAL COVENANTS..................................................19
(d) INSPECTION AND ACCESS TO INFORMATION.........................................20
(e) CONSULTATIONS................................................................20
4.2. CERTAIN ADDITIONAL COVENANTS OF THE PARTIES...........................................21
(a) CERTAIN FILINGS, CONSENTS AND ARRANGEMENTS...................................21
(b) NOTIFICATION OF CERTAIN MATTERS..............................................21
(c) REASONABLE EFFORTS...........................................................21
ARTICLE V
CONDITIONS TO CLOSING..........................................................................21
5.1. CONDITIONS TO THE OBLIGATIONS OF HOWELL AND NEWCO.....................................21
(a) REPRESENTATIONS AND WARRANTIES...............................................21
(b) PENDING LITIGATION; INSOLVENCY...............................................22
(c) OTHER CONSENTS AND FILINGS...................................................22
(d) NEW YORK STOCK EXCHANGE LISTING..............................................22
(e) DUE DILIGENCE................................................................22
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(f) HOWELL STOCKHOLDER APPROVAL..................................................22
5.2. CONDITIONS TO THE OBLIGATIONS OF VOYAGER..............................................22
(a) REPRESENTATIONS AND WARRANTIES...............................................23
(b) INJUNCTION...................................................................23
(c) GOVERNMENTAL FILINGS AND CONSENTS............................................23
(d) NEW YORK STOCK EXCHANGE LISTING..............................................23
ARTICLE VI
TERMINATION....................................................................................23
6.1. TERMINATION BY MUTUAL CONSENT.........................................................23
6.2. TERMINATION BY HOWELL, NEWCO OR VOYAGER...............................................23
6.3. TERMINATION BY HOWELL.................................................................24
6.4. TERMINATION BY VOYAGER................................................................24
6.5. EFFECT OF TERMINATION.................................................................24
ARTICLE VII
MISCELLANEOUS; GENERAL.........................................................................24
7.1. FEES AND EXPENSES.....................................................................24
7.2. NO SURVIVAL...........................................................................24
7.3. MODIFICATION OR AMENDMENT.............................................................24
7.4. WAIVER OF CONDITIONS..................................................................25
7.5. COUNTERPARTS..........................................................................25
7.6. GOVERNING LAW.........................................................................25
7.7. NOTICES...............................................................................25
7.8. DISCLOSURE LETTER AND EXHIBITS; ENTIRE AGREEMENT......................................26
7.9. ASSIGNMENT............................................................................26
7.10. OBLIGATION OF HOWELL AND NEWCO OR VOYAGER.............................................26
7.11. TITLES AND CAPTIONS...................................................................26
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INDEX OF DEFINITIONS
DEFINITION PAGE
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Act.......................................................................1
Agreement.................................................................1
CERCLA...................................................................11
Closing...................................................................2
Closing Date..............................................................2
Code......................................................................1
Constituent Corporations..................................................1
Disclosure Letter.........................................................5
Effective Time............................................................2
Environmental Claims.....................................................11
Environmental Laws.......................................................12
Environmental Permit.....................................................12
ERISA....................................................................10
Financial Statements......................................................7
Governmental Consents.....................................................7
Governmental Filings......................................................7
Hazardous Material.......................................................12
Howell....................................................................1
Howell Common Stock.......................................................3
Liabilities...............................................................8
Licenses..................................................................6
Material Adverse Effect...................................................5
Material Contracts........................................................8
Merger....................................................................1
Merger Consideration......................................................3
Newco.....................................................................1
Newco Common Stock........................................................4
Oil and Gas Properties....................................................9
RCRA.....................................................................11
Release..................................................................12
Representatives..........................................................20
Reserve Report............................................................7
Share Fraction............................................................3
Surviving Corporation.....................................................1
Tax......................................................................13
Tax Returns..............................................................13
Voyager...................................................................1
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Voyager Business..........................................................6
Voyager Certificate.......................................................3
Voyager Common Stock......................................................3
Voyager Preferred Stock...................................................3
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of
August __, 1997, is by and among Howell Corporation, a Delaware corporation
("Howell"), Howell Acquisition Corp., a Texas corporation and wholly owned
subsidiary of Howell ("Newco"), and Voyager Energy Corp., a Texas corporation
("Voyager"). Newco and Voyager are sometimes collectively referred to herein
as the "Constituent Corporations."
R E C I T A L S
WHEREAS, the respective Boards of Directors of Howell, Newco and
Voyager have approved the Merger (as defined below) of Newco with and into
Voyager upon the terms and subject to the conditions set forth herein and in
accordance with the Texas Business Corporation Act (the "Act"); and
WHEREAS, for federal income tax purposes, it is intended that the
Merger will be a reorganization under Sections 368(a)(1)(A) and 368(a)(2)(E)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, for accounting purposes, it is intended that the Merger
will be accounted for as a purchase;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants, agreements and conditions specified
in this Agreement, the parties hereto agree as follows:
ARTICLE I
THE MERGER; THE SURVIVING CORPORATION
1.1. THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.5), Newco shall be
merged with and into Voyager and the separate corporate existence of Newco
shall thereupon cease (the "Merger"). Voyager shall be the surviving
corporation of the Merger (sometimes hereinafter referred to as the
"Surviving Corporation") and shall continue to be governed by the laws of the
State of Texas, and the separate corporate existence of Voyager, with all the
rights, privileges, powers and franchises of each of the Constituent
Corporations, shall continue unaffected by the Merger. The Merger shall have
the effects specified in the Act.
1.2. ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING
CORPORATION. The Articles of Incorporation and the Bylaws of Voyager in
effect at the Effective Time shall be the Articles of Incorporation and the
Bylaws of the Surviving Corporation until duly amended in accordance with the
terms thereof and the Act.
1.3. DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The
directors and officers of Voyager shall, from and after the Effective Time,
be the directors and officers of the Surviving Corporation until their
respective successors have been duly elected or appointed and qualified or
until their earlier death, resignation or removal in accordance with the
Surviving Corporation's Articles of Incorporation and Bylaws.
1.4. CLOSING. The Closing of the Merger (the "Closing") shall take
place at such place and time as the parties hereto may agree, on the soonest
practicable date following the fulfillment or, to the extent permissible, the
waiver of all of the conditions to Closing set forth in Article V hereof. The
"Closing Date" shall be the date on which the Closing occurs.
1.5. EFFECTIVE TIME. On the Closing Date, Newco and Voyager shall
cause Articles of Merger effecting the Merger to be properly executed and
filed with the Secretary of State of the State of Texas in accordance with
the Act. The Merger shall become effective at the time at which such Articles
of Merger have been duly filed with the Secretary of State of the State of
Texas, and such time is herein referred to as the "Effective Time."
1.6. FURTHER ASSURANCES. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any further deeds,
bills of sale, assignments, assurances or any other actions or things are
necessary, desirable or proper to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation its rights, title or interest in, to
or under any of the rights, properties or assets of either of the Constituent
Corporations acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with, the Merger or otherwise to carry out the
purposes of this Agreement, the officers and directors of the Surviving
Corporation shall be authorized to execute and deliver, in the name and on
behalf of each of the Constituent Corporations or otherwise, all such deeds,
bills of sale, assignments and assurances and to take and do, in the name and
on behalf of each of the Constituent Corporations or otherwise, all such
other actions and things as may be necessary, desirable or proper to vest,
perfect or confirm any and all right, title and interest in, to and under
such rights, properties or assets in the Surviving Corporation or otherwise
to carry out the purposes of this Agreement.
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ARTICLE II
CONVERSION OR CANCELLATION OF SHARES
2.1. VOYAGER COMMON STOCK AND VOYAGER PREFERRED STOCK.
(a) At the Effective Time, each share of common stock, no
par value, of Voyager (the "Voyager Common Stock") and each share of
preferred stock, no par value, of Voyager (the "Voyager Preferred Stock")
issued and outstanding immediately prior to the Effective Time (except for
shares of Voyager Common Stock and Voyager Preferred Stock then held in the
treasury of Voyager, which shares shall be canceled and retired in accordance
with Section 2.1(c)), shall by virtue of the Merger and without any action on
the part of the holder thereof, be converted into the right to receive
3.424135319 shares (the "Share Fraction") of common stock, par value $1.00
per share, of Howell (the "Howell Common Stock"); provided that, in lieu of
the issuance of any fractional share of Howell Common Stock, the number of
shares of Howell Common Stock that each holder of shares of Voyager Common
Stock or Voyager Preferred Stock will become entitled to receive pursuant to
this Section 2.1(a) (after taking into account all shares of Voyager Common
Stock and Voyager Preferred Stock held by such holder) shall be rounded to
the nearest whole number of shares of Howell Common Stock. The consideration
described above to be received by the holders of Voyager Common Stock and
Voyager Preferred Stock pursuant to the Merger is hereinafter referred to
collectively as the "Merger Consideration."
At the Effective Time, all of the shares of Voyager Common
Stock and Voyager Preferred Stock which, by virtue of the Merger and without
any action on the part of the holders thereof, are converted into the right
to receive the Merger Consideration shall cease to be outstanding, shall be
canceled and retired and shall cease to exist, and each holder of a
certificate formerly representing any such shares (a "Voyager Certificate")
shall thereafter cease to have any rights with respect to such shares of
Voyager Common Stock or Voyager Preferred Stock, except the right to receive
the Merger Consideration for such shares of Voyager Common Stock or Voyager
Preferred Stock upon the surrender of such Voyager Certificate in accordance
with Section 2.3.
(b) If after the date hereof and prior to the Effective
Time Howell shall have declared a stock split (including a reverse split) of
Howell Common Stock or a dividend payable in Howell Common Stock, or any
other distribution of securities to holders of Howell Common Stock with
respect to their Howell Common Stock, then the Share Fraction shall be
proportionately adjusted to reflect such stock split, dividend or other
distribution of securities.
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(c) At the Effective Time, each share of Voyager Common
Stock or Voyager Preferred Stock held in the treasury of Voyager shall, by
virtue of the Merger and without any action on the part of Voyager, be
canceled and retired and cease to exist without payment of any consideration
therefor.
2.2. NEWCO COMMON STOCK. At the Effective Time, each share of common
stock, par value $.01 per share, of Newco (the "Newco Common Stock") issued
and outstanding immediately prior to the Effective Time shall be converted
into one share of Voyager Common Stock. As soon as practicable after the
Effective Time, the Surviving Corporation shall cause to be issued to Howell
a certificate representing the shares of Voyager Common Stock into which the
Newco Common Stock has been converted.
2.3. EXCHANGE OF VOYAGER COMMON STOCK AND VOYAGER PREFERRED STOCK
FOR MERGER CONSIDERATION.
(a) At the Closing or as soon as practicable thereafter,
each holder of shares of Voyager Common Stock or Voyager Preferred Stock
shall surrender to Howell for cancellation the Voyager Certificate(s) held by
such holder, together with a duly executed Letter of Transmittal in the form
of Exhibit 2.3(a) hereto. Upon surrender of such Voyager Certificate(s), such
holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of Howell Common Stock to
which such holder shall have become entitled pursuant to the provisions of
Section 2.1(a). Any holder of a Voyager Certificate(s) that has been lost or
destroyed may nevertheless obtain the Merger Consideration into which the
shares of Voyager Common Stock or Voyager Preferred Stock represented by such
Voyager Certificate(s) have been converted pursuant to the provisions of
Section 2.1, provided such holder delivers to Howell a statement certifying
such loss or destruction and providing for indemnity reasonably satisfactory
to Howell against any loss or expense it may incur as a result of such lost
or destroyed Voyager Certificate(s) being thereafter surrendered to Howell.
Until surrendered in accordance with the provisions of this Section 2.3(a),
each Voyager Certificate shall represent, for all purposes, only the right to
receive the Merger Consideration.
(b) No dividends or distributions declared with a record
date after the Effective Time with respect to Howell Common Stock shall be
paid to persons entitled to receive Howell Common Stock in the Merger until
such persons have surrendered their Voyager Certificates in accordance with
Section 2.3(a). Promptly after such surrender, there shall be paid to the
person in whose name Howell Common Stock shall be issued any dividends or
distributions on such Howell Common Stock which shall have a record date
after the Effective Time and prior to such surrender. If the payment date is
after the date of such surrender, such payment shall be made on the payment
date.
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(c) In no event shall the persons entitled to receive
dividends or distributions on shares of Howell Common Stock pursuant to
Section 2.3(b) be entitled to receive interest on such dividends or
distributions. All deliveries and payments in respect of shares of Voyager
Common Stock and Voyager Preferred Stock which are made in accordance with
the terms hereof shall be deemed to have been made in full satisfaction of
all rights pertaining to such securities, except as may be otherwise required
by law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF VOYAGER. Voyager hereby
represents and warrants to Howell and Newco that, as of the date hereof:
(a) CORPORATE ORGANIZATION AND QUALIFICATION. Voyager is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas and is qualified to do business as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it require such qualification, except
where any failure to be so qualified or in good standing would not have a
material adverse effect on the financial condition, properties, businesses or
results of operations of Voyager (a "Material Adverse Effect"). The
Disclosure Letter (as defined below) lists all jurisdictions in which Voyager
is qualified to do business as a foreign corporation. Voyager has the
corporate power and authority to carry on its businesses as they are now
being conducted. Except as set forth in the Disclosure Letter, Voyager does
not own, directly or indirectly, any interest in any corporation, partnership
or other entity. As used herein, the "Disclosure Letter" is the letter
delivered by Voyager to Howell as of the date of this Agreement containing
disclosures related to the representations and warranties contained in this
Section 3.1.
(b) AUTHORIZED CAPITAL. The authorized capital stock of
Voyager consists of (i) 750,000 shares of Voyager Common Stock and (ii)
250,000 shares of Voyager Preferred Stock. The outstanding capital stock of
Voyager as of the date hereof consists of 96,719 issued and outstanding
shares of Voyager Common Stock and 6,267 issued and outstanding shares of
Voyager Preferred Stock. All of the outstanding shares of Voyager Common
Stock and Voyager Preferred Stock have been duly authorized and validly
issued, are fully paid and nonassessable and were issued in compliance with
all applicable federal and state securities laws. There are, and have been,
no preemptive rights with respect to the issuance of shares of Voyager Common
Stock or Voyager Preferred Stock. Voyager has no shares reserved for issuance
for any purpose. Except as set forth above, there are no shares of capital
stock of Voyager authorized, issued or outstanding. There are no outstanding
subscriptions, options, warrants, rights, convertible securities, or other
agreements or
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commitments (whether contingent or not) of any character relating to unissued
capital stock or other securities of Voyager obligating Voyager to issue any
shares of or other equity interests in, or securities or rights convertible
into or exchangeable for shares of or other equity interests in, Voyager.
Except for this Agreement, there are no agreements or understandings with
respect to the voting, sale, transfer or registration of any shares of
capital stock of Voyager to which Voyager is a party or to which any holder
of capital stock of Voyager is a party.
(c) CORPORATE AUTHORITY. Prior to the date of this
Agreement, the board of directors and the shareholders of Voyager, pursuant
to Articles 5.01 and 5.03 of the Act, approved this Agreement and the
consummation of the transactions contemplated hereby. Voyager has the full
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, including without limitation the Merger.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including without limitation the Merger,
have been duly and validly authorized by all necessary corporate action on
the part of Voyager. This Agreement has been duly and validly executed and
delivered by Voyager and constitutes a legal, valid and binding agreement of
Voyager enforceable against Voyager in accordance with its terms, except that
(i) such enforcement may be subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(d) NO CONFLICTS OR VIOLATIONS. The execution and delivery
of this Agreement by Voyager does not, and the consummation by Voyager of the
transactions contemplated hereby, including without limitation the Merger,
will not, constitute or result in (i) a breach or violation of, or a default
under, the Articles of Incorporation or Bylaws of Voyager, (ii) the
triggering of any right of first refusal or similar rights under any
shareholder or partnership agreement to which Voyager is a party, or (iii) a
breach or violation of, a default under, the creation of a right to
terminate, the acceleration of or the creation of a lien, pledge, security
interest or other encumbrance on assets pursuant to (with or without the
giving of notice or the lapse of time) any provision of any agreement, lease,
contract, note, mortgage, indenture, arrangement or other obligation of
Voyager, or any law, rule, ordinance or regulation or judgment, decree,
order, award or governmental or non-governmental permit or license to which
Voyager is subject.
(e) LICENSES; COMPLIANCE WITH LAWS. Voyager holds all
permits, licenses, variances, exemptions, orders and approvals from
governmental authorities (collectively, the "Licenses") which are necessary
to conduct its businesses and operations in the manner heretofore conducted
(the "Voyager Business"), except for failures to hold such Licenses or
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to comply with such laws, rules and regulations which, in the aggregate,
would not have a Material Adverse Effect. No event has occurred with respect
to any of the Licenses which permits, or after notice or lapse of time or
both would permit, revocation or termination thereof or would result in any
impairment of the rights of the holder of any such License, except for
revocations, terminations and impairments which, in the aggregate, would not
have a Material Adverse Effect. Voyager is in compliance with all federal,
state, local and foreign laws, ordinances, codes, regulations, orders,
requirements, standards and procedures, which are applicable to the business
of Voyager, except for failures so to comply which would not have a Material
Adverse Effect.
(f) FINANCIAL STATEMENTS; RESERVE REPORT. Voyager has made
available to Howell true and complete copies of the unaudited financial
statements and related notes for Voyager (the "Financial Statements") as of
and for the years ended December 31, 1995 and December 31, 1996 and as of and
for the five months ended May 31, 1997. The Financial Statements fairly
present the financial position and results of operations of Voyager as of the
dates and for the periods specified therein; provided, however, that Voyager
maintained its books and records on the accrual basis of accounting, and,
accordingly, although such financial statements were prepared on a best
efforts basis and in good faith by Voyager, they include estimates and
accrued items. Voyager has delivered to Howell a copy of its internally
prepared reserve report (the "Reserve Report") dated as of June 1, 1997
relating to the oil and gas reserves attributable to Voyager's Oil and Gas
Properties (as defined in Section 3.1(n)). The estimates of reserves in the
Reserve Report were prepared in accordance with geological and engineering
methods generally accepted in the oil and gas industry.
(g) ABSENCE OF CERTAIN CHANGES. Except as set forth in the
Disclosure Letter and except for declines in production of oil and gas, since
May 31, 1997, Voyager has not undergone or suffered any change in its
financial condition, properties, business or results of operations which has
been, individually or in the aggregate, materially adverse to Voyager. Except
as set forth in the Disclosure Letter, since May 31, 1997, Voyager has not
taken any action prohibited by Section 4.1(b) hereof or conducted its
business other than in the ordinary and usual course.
(h) GOVERNMENTAL FILINGS AND CONSENTS. No notices, reports
or other filings ("Governmental Filings") are required to be made by Voyager
with, nor are any consents, registrations, approvals, permits or
authorizations ("Governmental Consents") required to be obtained by Voyager
from, any governmental or regulatory authorities of the United States, the
several states or any foreign jurisdiction in connection with the execution
and delivery of this Agreement by Voyager and the consummation of the
transactions contemplated hereby, except for the filing and recordation of
Articles of Merger in accordance with the Act.
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(i) LITIGATION. Except as set forth in the Disclosure
Letter, there are no actions, suits, investigations or proceedings pending
or, to the knowledge of Voyager or the Shareholders, threatened against
Voyager.
(j) UNDISCLOSED LIABILITIES. Except as set forth in the
Disclosure Letter or disclosed or specifically reserved against in the
Financial Statements, Voyager has not incurred or otherwise become liable for
any direct or indirect material liability, indebtedness, obligation, expense,
claim, deficiency, guaranty or endorsement of or by any person
("Liabilities") except for Liabilities arising in the ordinary course of
business consistent with past practice or in connection with the transactions
contemplated by this Agreement. Voyager does not know of any basis for
assertion against Voyager of any Liabilities not adequately reflected in the
Financial Statements.
(k) EMPLOYMENT AND NONCOMPETITION AGREEMENTS. Except for
such as may be terminated without penalty within 30 days and except for Area
of Mutual Interest Agreements relating to Voyager's Oil and Gas Properties
(as defined in Section 3.1(n)), Voyager is not a party to any employment,
consulting, noncompetition, nonsolicitation or other similar agreement.
(l) MATERIAL CONTRACTS. All agreements, personal property
and fixture leases, real property leases, contracts, notes, mortgages,
indentures, arrangements or other obligations of Voyager that, in each case,
are material (the "Material Contracts") are valid, binding and enforceable in
accordance with their terms except to the extent limited by bankruptcy or
other laws affecting creditors' rights generally. True, correct and complete
copies of all Material Contracts have been made available to Howell, and all
of the Material Contracts that relate to (i) indebtedness of Voyager, (ii)
the payment or receipt of payment by Voyager of $50,000 or more in any twelve
month period, or (iii) the delivery or performance or receipt by Voyager of
goods or services with a value of $50,000 or more during any twelve month
period are listed in the Disclosure Letter. Voyager has fulfilled, or will be
able to fulfill when due, all of its obligations under the Material
Contracts, except for failures to fulfill its obligations which, in the
aggregate, would not have a Material Adverse Effect. No default by Voyager
under any Material Contract has occurred and is continuing, except for any
default which would not give another person the right, with or without giving
of notice or lapse of time, or both, to terminate or materially modify the
terms of such contract and except for terminations and modifications which
would not have a Material Adverse Effect. Voyager has no knowledge of any
material default or claimed, threatened or alleged material default by any
other party under any term or provision of any Material Contract. There are
no developments known to Voyager materially affecting any Material Contract
that might prevent Voyager from realizing the benefits of any such Material
Contract or that might prevent the Surviving Corporation from realizing such
benefits after the completion of the Merger. Except as set forth in the
Disclosure Letter, no
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consents or approvals of any party to any Material Contract are required to
be obtained by Voyager in connection with the execution and delivery of this
Agreement by Voyager and the consummation of the transactions contemplated
hereby.
(m) POWERS OF ATTORNEY AND CERTAIN AUTHORIZED PERSONS. No
person holds a power of attorney from Voyager. No person other than the
executive officers of Voyager is authorized to borrow money or incur or
guarantee indebtedness on behalf of Voyager.
(n) PROPERTIES. Voyager has marketable title to the Oil and
Gas Properties (as defined below) of Voyager, all of which Oil and Gas
Properties are set forth in the Disclosure Letter, and owns, free and clear
of all liens, claims and encumbrances, all of the other material assets
reflected on the Financial Statements as being owned by Voyager and all such
assets thereafter acquired by Voyager (except to the extent that such assets
have thereafter been disposed of in the ordinary course of business
consistent with past practice). As used herein, "Oil and Gas Properties"
means all rights, titles, leasehold and other interests and estates in and to
oil and gas leases, oil, gas and mineral leases, or other liquid or gaseous
hydrocarbon leases, mineral fee interests, overriding royalty and royalty
interests, net profit interests and production payment interests, including
any reversionary or residual interests of whatever nature.
(o) PATENTS, COPYRIGHTS, SERVICE MARKS AND TRADEMARKS.
Voyager is not the owner of any registered patent, copyright, trademark,
servicemark, tradename or servicename. Voyager has full and sufficient rights
to use and practice all technology, trade secrets, know-how and other
proprietary information used or practiced in the operation of its businesses,
free and clear of all liens, encumbrances, commitments, assignments,
licenses, claims and rights of others. Voyager has not infringed and is not
infringing on the right or interest of any other person or entity to or in
any patent, copyright, trade or service mark or trade or service name.
Voyager has no knowledge of any claim, whether actual or threatened, against
Voyager for any such infringement.
(p) INSURANCE. All insurance coverage applicable to Voyager
and the Voyager Business is in full force and effect, is valid, binding and
enforceable in accordance with its terms against the respective insurers,
insures Voyager in reasonably sufficient amounts against all risks usually
insured against by persons operating similar businesses or properties in the
localities where such businesses or properties are located and has been
issued by insurers of recognized responsibility. To the knowledge of Voyager,
there is no default under such coverage nor has there been any failure to
give notice or present any claim under any such coverage in due and timely
fashion. There are no outstanding past due unpaid premiums and no notice of
cancellation or non-renewal of any such coverage has been received. Voyager
does not know of the occurrence of any event which reasonably might form the
basis of any claim against Voyager or its assets or properties or which might
-9-
increase the insurance premiums payable for any such coverage, except for
such claims and increases as would not in the aggregate have a Material
Adverse Effect. There are no outstanding performance bonds covering Voyager
or its operations which, individually or in the aggregate, are material to
the Voyager Business.
(q) EMPLOYEES. Voyager has no employees.
(r) EMPLOYEE BENEFIT PLANS. There are no "employee benefit
plans," as such term is defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and no other deferred
compensation, stock purchase, stock option, stock incentive, other incentive,
bonus, severance or fringe benefit plan, program, policy or arrangement,
whether written or unwritten, formal or informal, that are maintained or
contributed to by Voyager for the benefit of Voyager's employees. Voyager
does not now, and has not at any time sponsored, maintained, adopted,
contributed or been obligated to contribute to any employee pension benefit
plans, pursuant to Section 3(2) of ERISA, for the benefit of Voyager's
employees which are or ever were subject to the provisions of Title IV of
ERISA. Voyager is not now, and has never been, a party to, or become subject
to, any collective bargaining agreements with respect to Voyager's employees
pursuant to which any of them has been, is or will become obligated to
contribute to a "multi-employer plan" as that term is defined in Section
4001(a)(3) of ERISA. Voyager is not now, and has never been, a part of either
(A) a controlled group of corporations within the meaning of Section 414(b)
of the Code, (B) a group of trades or businesses under common control within
the meaning of Section 414(c) of the Code, or (C) an affiliated service group
within the meaning of Section 414(m) of the Code, except as to which, in each
case, Voyager has not incurred, and will not incur, any liability material to
the financial condition, properties, businesses or results of operations of
Voyager.
(s) TRANSACTIONS WITH AFFILIATES. No director or officer of
Voyager or any member of the immediate family or any other of the affiliates
of any of the foregoing owns or has an ownership interest in any corporation
or other entity, other than Howell, that is a party to, or in any property
which is the subject of, business arrangements or relationships of any kind
with Voyager.
(t) ENVIRONMENTAL MATTERS. Except as set forth in the
Disclosure Letter and except for matters which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, (i) to the knowledge of Voyager, no Releases of Hazardous Materials
or violations of Environmental Laws have occurred at or from any property
which is the subject of this transaction or which was otherwise owned,
operated, or used (including third party sites at which disposals from the
operations occurred) at any time by Voyager or its predecessors; (ii) since
its formation there have not been any, and there are no pending or, to the
knowledge of Voyager, threatened, Environmental Claims against
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Voyager; (iii) to the knowledge of Voyager, there are no underground storage
tanks, polychlorinated biphenyls, or asbestos-containing materials owned by
Voyager, or located at any facility owned or operated by Voyager; (iv) to the
knowledge of Voyager, there are no facts, circumstances, or conditions that
would reasonably be expected to give rise to liability under any
Environmental Laws or to restrict, under any Environmental Laws or
Environmental Permit in effect prior to or at the Closing Date, the
ownership, occupancy, use or transferability of any property owned, operated,
or leased by Voyager; (v) Voyager has not disposed, treated, or arranged for
the disposal or treatment of any toxic or hazardous wastes, materials or
Hazardous Materials at a site or location, or leased, used, operated or owned
a site or location, which (x) has been or is proposed to be placed on the
National Priorities List or its state equivalent pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended ("CERCLA"), or similar foreign, territorial or state law; (y) is
subject to a lien, administrative order or other demand either to take
response or other action under CERCLA or other Environmental Laws, or to
develop or implement a "Corrective Action Plan" or "Compliance Plan," as each
is defined in regulations promulgated pursuant to the Resource Conservation
and Recovery Act, as amended ("RCRA"), or to reimburse any person who has
taken response or other action in connection with that site; or (z) is on any
Comprehensive Environmental Response Compensation Liability Information
System List; (vi) to the knowledge of Voyager, the facilities owned, leased,
or operated by Voyager are adequate and sufficient for the current operations
of Voyager in conformance with all applicable requirements of Environmental
Laws; (vii) to the knowledge of Voyager, Voyager is in compliance with all
Environmental Laws and Environmental Permits relating to or affecting the
assets, business or operations of Voyager. As used herein:
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, orders,
claims, liens, notices of noncompliance or violations, investigations
or proceedings related to any applicable Environmental Laws or any
Environmental Permit brought, issued or asserted by: (i) a governmental
or regulatory authority or third party for compliance, damages,
penalties, removal, response, cleanup, cost recovery, remedial or other
action, injunctive relief, or for contribution or indemnity with
respect thereto, pursuant to any applicable Environmental Laws; or (ii)
a third party seeking damages for personal injury or property damage
resulting from the release of a Hazardous Material at, to or from any
facility of Voyager, including but not limited to Voyager employees
seeking damages for exposure to Hazardous Materials. (An Environmental
Claim includes, but is not limited to, a common law action, as well as
a proceeding to issue, modify, terminate, or enforce the provisions of
an Environmental Permit or requirement of Environmental Laws, or to
adopt or amend a regulation to the extent that such a proceeding
attempts to address violations or alleged violations of the applicable
permit, license, or regulation.);
-11-
"Environmental Laws" means all applicable federal, state,
provincial, territorial, foreign, and local laws, statutes, ordinances,
codes, policies (to the extent they have the force of law), rules and
regulations, judicial or administrative decisions, decrees or orders
related to protection of the environment and/or the handling, use,
generation, treatment, storage, transportation, or disposal of
Hazardous Materials;
"Environmental Permit" means all permits, licenses,
identification numbers, approvals, authorizations, or consents required
by any governmental authority under any applicable Environmental Laws
and includes any and all orders, consent orders or binding agreements
issued or entered into by or with a governmental authority under any
applicable Environmental Laws and applicable to or binding upon Voyager
or its operations;
"Hazardous Material" means any pollutant, contaminant, toxic
substance, hazardous or extremely hazardous substance or chemical,
solid or hazardous waste, special, liquid, industrial or other waste,
hazardous material, or other material, substance or agent (whether in
solid, liquid or gaseous form) which is regulated as of the Closing
Date by any state or local governmental authority or the United States
or under any Environmental Laws, including, without limitation, any
material or substance that is: (i) defined as a "hazardous substance"
under applicable state law; (ii) petroleum or petroleum products,
including, but not limited to, used oil; (iii) asbestos or
asbestos-containing materials; (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution
Control Act, as amended, 33 U.S.C. ss. 1251 ET SEQ.; (v) defined as a
"hazardous waste" by or under the federal Resource Conversation and
Recovery Act, as amended, 42 U.S.C. ss. 6901 ET SEQ.; (vi) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42
U.S.C. ss. 9601 ET SEQ.; (vii) defined as a "regulated substance"
pursuant to Section 9001 of the federal Resource Conservation and
Recovery Act, as amended, 42 U.S.C. ss. 6901 ET SEQ.; (viii) regulated
as an air pollutant by or under the Clean Air Act, as amended, 42
U.S.C. ss. 7401 ET SEQ., or (ix) otherwise regulated under the Toxic
Substances Control Act, 15 U.S.C. ss. 2601 ET SEQ., the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. ss. 5101 ET SEQ.,
the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 ET SEQ., the Safe
Drinking Water Act, 42 U.S.C. ss. 300F, ET SEQ., the Atomic Energy Act,
42 U.S.C. ss. 2011 ET SEQ., the Emergency Planning and Community
Right-To-Know Act, 42 U.S.C. ss. 11001 ET SEQ., or the Federal
Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. ss.
136 ET SEQ.; and
"Release," as referred to herein, shall mean any release,
spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or
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migration of any Hazardous Material into the environment or into or out
of any property, including the movement of any Hazardous Material
through or in the air, soil, surface water, groundwater, or property.
(u) TAX MATTERS. Except as set forth in the Disclosure Letter:
(i) Other than its 1996 federal income tax return and
its 1996 Louisiana tax return, for which it has received an extension
of time in which to file, Voyager has filed or caused to be filed all
federal, state, local, foreign or other Tax (as defined in Section
3.1(u)(v)) returns ("Tax Returns") of every nature required to be filed
by it, other than failures to file which, in the aggregate, would not
have a Material Adverse Effect;
(ii) Other than with respect to its 1996 federal
income tax return and its 1996 Louisiana tax return, Voyager has not
obtained any extensions of time in which to file any Tax Returns which
have not yet been filed;
(iii) Each Tax Return filed by Voyager is complete
and correct in all material respects;
(iv) No claim or assertion has been made against
Voyager by any tax authority in any jurisdiction in which no Tax Return
has been filed by Voyager that Voyager is or may be subject to taxation
of any sort in that jurisdiction or otherwise is required to file a Tax
Return;
(v) All Taxes owed by Voyager (whether or not shown
on any Tax Return) have been timely paid, except for any Taxes that are
being contested in good faith and failures to make payment which, in
the aggregate, would not have a Material Adverse Effect. For purposes
of this Agreement, "Tax" means any federal, state, local or foreign
income, gross receipts, license, payroll, unemployment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including, but not limited to, taxes under Section 59A of the Code),
customs, duties, capital stock, franchise, profits, withholding, Social
Security, unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or any other kind of tax whatsoever, including any
interest, addition, penalty or other associated charge thereto, whether
disputed or not;
(vi) There are no Tax liens or other security
interests or encumbrances of any type resulting from Tax liabilities on
any of the assets of Voyager;
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(vii) To the knowledge of Voyager, Voyager has
withheld and paid all Taxes required to be withheld and paid in
connection with amounts paid or owing to any employee, creditor,
independent contractor or any other party;
(viii) There is no dispute, claim or any other
controversy concerning any Tax liability of Voyager either (A) raised
or asserted by any Tax authority in writing; or (B) whether or not
formally asserted or claimed, as to which the chief financial officer
or the chief accounting officer or any other officer or employee of
Voyager with authority for Tax matters has any knowledge. Voyager has
made available to Howell each federal Income Tax Return, examination
report, statement of deficiency, or any other administrative or
judicial assertion, assessment or determination of federal Income Tax
liability with respect to Voyager;
(ix) Each method of Tax accounting employed by
Voyager, and material to the tax position of Voyager, is a permissible
method of Tax accounting, validly elected, with respect to Voyager.
Voyager has not changed, or requested to be permitted to change, any
method of Tax accounting; and
(x) Voyager:
(A) has not filed a consent under
Section 341(f) of the Code concerning collapsible
corporations;
(B) has not made any payments, is not
obligated to make any payments, and is not a party to any
agreement that could render it (or the payor of compensation
under the agreement) subject to the provisions of Section 280G
of the Code regarding payments as a result of a change in
control;
(C) has not been a United States real
property holding company within the meaning of Section
897(c)(2);
(D) has not failed to disclose on its Tax
return any positions taken therein that could give rise to a
substantial understatement of Federal Income Tax liability
within the meaning of Section 6661 of the Code;
(E) is not a party to any Tax allocation or
Tax sharing agreement, except as set forth in the Disclosure
Letter; and
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(F) is not now and has never been a member
of an affiliated group (within the meaning of Section 1504(a)
of the Code or any similar group defined under a similar
provision of state, local or foreign law).
(v) FINANCIAL ADVISORS. None of Voyager or any of its
officers, directors or employees has employed any financial advisor, broker or
finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finders' fees in connection with the transactions
contemplated herein.
(w) RELATIONS WITH CUSTOMERS AND SUPPLIERS. To the knowledge
of Voyager, Voyager has satisfactory commercial relationships with its
significant customers and suppliers.
(x) ABSENCE OF CERTAIN COMMERCIAL PRACTICES. None of Voyager,
or any of its directors or officers and, to the knowledge of Voyager, none of
Voyager's agents, affiliates, or employees, or other persons acting on behalf of
Voyager or any of its directors, officers, agents, affiliates or employees, has
(i) given, proposed to give, or agreed to give any material gift or similar
benefit to any customer, supplier or governmental employee or official or any
other person, for the purpose of directly or indirectly furthering the Voyager
Business or assisting Voyager with any proposed transaction, or which, if not
continued in the future, could reasonably be expected to adversely affect
Voyager, or (ii) in connection with the Voyager Business used any corporate or
other funds for contributions, payments, gifts, or entertainment, or made any
expenditures relating to political activities to government officials or others
in violation of any applicable laws or established or maintained any unlawful or
unrecorded funds. None of Voyager or any of its directors or officers and, to
the knowledge of Voyager, none of Voyager's agents, affiliates or employees, or
other persons acting on behalf of Voyager or any of its directors, officers,
agents, affiliates or employees, has accepted or received any unlawful
contributions, payments, gifts, or expenditures in connection with the Voyager
Business.
(y) BOOKS AND RECORDS.
(i) The minute books and stock ledgers of Voyager
that have been made available to Howell or its Representatives (as
defined in Section 4.1(d)) constitute all of the minute books and stock
ledgers of Voyager and contain a complete and accurate record of all
actions of the shareholders and directors (and any committees thereof)
of Voyager. All personnel files, reports, feasibility studies,
strategic planning documents, financial forecasts, lease files, land
files, accounting and tax records and all of the records of every type
and description in whatever form
-15-
or medium that relate to the business and properties of Voyager and are
in the possession or control of Voyager have been made available to
Howell or its Representatives.
(ii) Voyager makes and keeps books, records and
accounts which, in reasonable detail and in all material respects,
accurately and fairly reflect its transactions and dispositions of its
assets and securities and maintains a system of internal accounting
controls sufficient to provide assurances that (A) transactions
involving Voyager are executed in accordance with management's general
or specific authorizations; (B) transactions are recorded as necessary
to maintain accountability for assets; (C) access to assets of Voyager
is permitted only in accordance with management's general or specific
authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) DISCLOSURE. No representation or warranty by Voyager in
this Agreement and no statement contained in the Disclosure Letter or any
certificate delivered by Voyager to Howell pursuant to this Agreement contains
any untrue statement of a material fact or omits any material fact necessary in
order to make the statements herein or therein, in light of the circumstances
under which they are or were made, not misleading. The Disclosure Letter is
true, correct and complete on and as of the date hereof and Voyager has not
omitted any information from the Disclosure Letter in reliance on their right to
supplement the Disclosure Letter pursuant to Section 3.3 hereof.
(aa) MATERIALITY. The materiality qualifications contained in
the representations and warranties set forth in this Section 3.1 in the
aggregate do not have, and could not reasonably be expected to have, a Material
Adverse Effect.
3.2. REPRESENTATIONS AND WARRANTIES OF HOWELL AND NEWCO. Howell
and Newco represent and warrant to Voyager that:
(a) CORPORATE ORGANIZATION AND QUALIFICATION. Each of Howell
and Newco is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its businesses as they are now being conducted. All of
the outstanding capital stock of Newco is, and at all times since its
incorporation has been, owned beneficially and of record by Howell. Newco has
not at any time since its incorporation, except as contemplated by this
Agreement (i) engaged, directly or through any subsidiary, in any business or
activities of any type or kind whatsoever, (ii) entered into any agreements with
any person or entity or (iii) become subject to or bound by any obligation or
undertaking.
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(b) CORPORATE AUTHORITY. Each of Howell and Newco has the
requisite corporate power and authority and has taken all corporate action
necessary in order to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by each of Howell and Newco and constitutes a legal,
valid and binding agreement of each of them enforceable against each of them in
accordance with its terms, except that (i) such enforcement may be subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(c) NO CONFLICTS OR VIOLATIONS. The execution and delivery of
this Agreement by Howell and Newco do not, and the consummation by Howell and
Newco of the transactions contemplated hereby will not, constitute or result in
(i) a breach or violation of, or a default under, the Certificate or Articles of
Incorporation or Bylaws of either Howell or Newco or (ii) a breach or violation
of, a default under, the creation of a right to terminate, the acceleration of
or the creation of a lien, pledge, security interest or other encumbrance on
assets pursuant to (with or without the giving of notice or the lapse of time),
any provision of any agreement, lease, contract, note, mortgage, indenture,
arrangement or other obligation of Howell or Newco or any law, rule, ordinance
or regulation or judgment, decree, order, award or governmental or
non-governmental permit or license to which Howell or Newco is subject except,
in the case of clause (ii) above, for such breaches, violations, defaults,
accelerations or liens which, alone or in the aggregate, would not have a
Material Adverse Effect on Howell or on the consummation of the transactions
contemplated by this Agreement.
(d) GOVERNMENTAL FILINGS AND CONSENTS. Except for the filings
provided for in Section 1.5, no Governmental Filings are required to be made nor
are any Governmental Consents required to be obtained by Howell or Newco in
connection with the execution and delivery of this Agreement by Howell and Newco
and the consummation of the transactions contemplated hereby.
(e) FINANCIAL ADVISORS. None of Howell, Newco or any of their
officers, directors or employees has employed any financial advisor, broker or
finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finders' fees in connection with the transactions
contemplated herein.
3.3. DISCLOSURE LETTER; AMENDMENTS. From time to time prior to the
Closing Date, Voyager shall promptly supplement or amend the Disclosure Letter
to reflect any matter hereafter arising that would make any representation or
warranty set forth in Section 3.1
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materially inaccurate. For purposes of determining (i) the fulfillment of the
condition set forth in Section 5.1(a) as of the Closing Date and (ii) the
accuracy of the representations and warranties contained in Section 3.1 if the
Merger is not consummated, the Disclosure Letter shall be deemed to include only
that information contained therein on the date of this Agreement and shall be
deemed to exclude any information contained in any subsequent supplement or
amendment thereto. For purposes of determining the accuracy of the
representations and warranties contained in Section 3.1 should the Merger be
consummated, the Disclosure Letter shall be deemed to include all information
contained in any supplement or amendment thereto made before the Closing Date.
ARTICLE IV
COVENANTS
4.1. CERTAIN COVENANTS OF VOYAGER.
(a) INTERIM OPERATIONS OF VOYAGER. From and after the date
hereof and prior to the Effective Time (unless Howell shall otherwise agree in
writing and except as otherwise contemplated by this Agreement), Voyager shall:
(i) Carry on its businesses diligently and in the
ordinary and usual course, consistent with past practice.
(ii) Take all action necessary to comply with and
maintain all Licenses of Voyager and otherwise preserve its rights to
conduct the Voyager Business in the areas in which it has the right to
conduct the Voyager Business as of the date of this Agreement.
(iii) Use all reasonable efforts to preserve its
business organization intact and maintain its existing relations with
customers, suppliers, employees and business associates.
(b) NEGATIVE COVENANTS. From and after the date hereof and
prior to the Effective Time (unless Howell shall otherwise agree in writing and
except as otherwise contemplated by this Agreement), Voyager shall not:
(i) (A) Sell or pledge or agree to sell or pledge any
of its stock; (B) amend its Articles of Incorporation or Bylaws; (C)
split, combine or reclassify the outstanding shares of Voyager Common
Stock or Voyager Preferred Stock; or (D) declare, set aside or pay any
dividend payable in cash, stock or property with respect to shares of
Voyager Common Stock or Voyager Preferred Stock.
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(ii) (A) Issue, sell, pledge, dispose of or encumber
any shares of, or securities convertible or exchangeable or exercisable
for, or options, warrants, calls, commitments or rights of any kind to
acquire any shares of, its capital stock; (B) transfer, lease, license,
sell, mortgage, pledge, dispose of or encumber any assets other than in
the ordinary course of business; (C) incur, amend the terms of or
modify any indebtedness or other liability other than current
liabilities incurred in the ordinary and usual course of business; (D)
extend other than on a month-to-month basis or otherwise modify or
amend, or waive any rights under, any lease of real property; or (E)
acquire directly or indirectly by redemption or otherwise any shares of
its capital stock or any options, warrants, calls, commitments or
rights to acquire the same.
(iii) (A) Increase in any manner the compensation of
any director, officer or any other employee; (B) grant any performance
or incentive bonus, or any severance or termination pay; or (C)
establish, adopt, or enter into any employee benefit plan, including
without limitation any plan of a type described in the first two
sentences of Section 3.1(r).
(iv) (A) Acquire, by merger, reorganization,
consolidation or purchase, substantially all of the assets of, or
otherwise acquire, any business or any organization or division
thereof; or (B) merge with, liquidate into or otherwise combine with
any other person, corporation, partnership or other entity.
(v) Enter into any agreement or make any commitment
to do any of the foregoing.
(vi) Change its application of accounting principles
in any material respect except if such change is required by GAAP to be
made at such time.
(vii) Take any action that is intended or may
reasonably be expected to result in (A) any of their representations
and warranties contained in this Agreement being or becoming untrue in
any material respect, or (B) any of the conditions to the Merger set
forth in Article V not being satisfied, or (C) a violation of any
provision of this Agreement.
(c) OTHER OPERATIONAL COVENANTS. Between the date hereof and
the Effective Time, unless Howell shall otherwise agree in writing, Voyager
shall:
(i) Perform in all material respects all of its
obligations under all Material Contracts (except those being contested
in good faith and disclosed to Howell in writing and which are not,
individually or in the aggregate, material to the
-19-
business of Voyager) and not enter into, assume or amend any contracts
except (x) contracts which are in the ordinary course of business
involving the payment by Voyager of less than $50,000 individually or
(y) contracts which are not in the ordinary course of business
involving the payment by Voyager of less than $25,000 individually.
(ii) Maintain in full force and effect policies of
insurance comparable in scope of coverage to that now maintained by
Voyager, and use reasonable efforts to cause its material properties
and equipment to be kept in good repair, working order and condition,
ordinary wear and tear excepted, in accordance with its customary
policies and past practices.
(iii) Prepare and timely file, or obtain extensions
of time in which to file, all federal, state, local and foreign returns
for taxes and other tax reports, filings and amendments thereto
required to be filed by it, and allow Howell, at its request, to review
all such returns, reports, filings and amendments, or applications for
extension of time in which to file, at Voyager's offices.
(d) INSPECTION AND ACCESS TO INFORMATION. Voyager shall allow
Howell and its authorized employees, representatives and designees
(collectively, the "Representatives") reasonable access during normal
business hours to all of Voyager's properties and records, officers,
employees, counsel and tax accountants and shall make available to Howell and
the Representatives such information concerning Voyager's affairs as Howell
may reasonably request.
(e) CONSULTATIONS. In connection with the continuing operation
of the business of Voyager between the date of this Agreement and the Closing
Date, Voyager and its officers and directors shall confer in good faith with
Representatives, as requested by Howell from time to time, to report on
material operational matters and the general status of ongoing operations.
Voyager acknowledges that Howell does not and will not waive any rights it
may have under this Agreement as a result of such consultations (except to
the extent the results of such consultations are contained in an amendment or
supplement to the Disclosure Letter in effect on the Closing Date) nor shall
Howell be responsible for any decisions made by Voyager or Voyager's officers
and directors with respect to matters that are the subject of such
consultation. Howell agrees that it shall promptly respond to any request by
Voyager for Howell's acknowledgment of consultation or consent hereunder, and
that any such acknowledgment or consent shall not be unreasonably withheld.
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4.2. CERTAIN ADDITIONAL COVENANTS OF THE PARTIES.
-21-
(a) CERTAIN FILINGS, CONSENTS AND ARRANGEMENTS. Voyager,
Howell and Newco shall cooperate with one another (1) in promptly determining
whether any filings are reasonably required to be or should be made, or any
consents, approvals, permits or authorizations are required to be or should be
obtained, under any federal, state or local law or regulation or whether any
consents, approvals or waivers are required to be or should be obtained from
other parties to loan agreements or other Material Contracts in connection with
the consummation of the transactions contemplated hereby, and (2) in promptly
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such consents, permits, authorizations,
approvals or waivers.
(b) NOTIFICATION OF CERTAIN MATTERS. Each of Voyager, Howell
and Newco shall give prompt notice to the other of (1) any notice of, or other
communication relating to, a default or event which, with notice or lapse of
time or both, would become a default, received by it or any of its subsidiaries
subsequent to the date of this Agreement and prior to the Effective Time, under
any Material Contract, in the case of Voyager or, in the case of Howell, under
any contract material to its financial condition, properties, businesses or
results of operations or (2) any notice or other communication from any third
party alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement.
(c) REASONABLE EFFORTS. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all actions, 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 Agreement on
or before November 1, 1997.
ARTICLE V
CONDITIONS TO CLOSING
5.1. CONDITIONS TO THE OBLIGATIONS OF HOWELL AND NEWCO. The respective
obligations of Howell and Newco to consummate the Merger are subject to the
fulfillment at or prior to the Effective Time of the following conditions, any
or all of which may be waived in whole or in part by Howell or Newco, as the
case may be, to the extent allowed by applicable law.
(a) REPRESENTATIONS AND WARRANTIES. Except for representations
and warranties specifically stated to be made only as of a specified date, the
representations and warranties of Voyager set forth in this Agreement shall be
true and correct at and as of the Effective Time with the same force and effect
as though the same had been made at and as
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of the Effective Time (except for such changes therein expressly permitted by
this Agreement or in writing by Howell), Voyager shall have performed in all
material respects all of its obligations under this Agreement theretofore to be
performed, and Howell shall have received at the Effective Time a certificate to
that effect dated the Closing Date and executed by an authorized executive
officer of Voyager.
(b) PENDING LITIGATION; INSOLVENCY. There shall not be any
litigation or other proceeding pending or threatened to restrain or invalidate
any of the transactions contemplated by this Agreement, which, in the reasonable
judgment of Howell, would make the consummation of the Merger imprudent in light
of applicable law, or the defense of which would involve material expense to
Howell. Voyager shall not be a party to any proceeding in bankruptcy or for the
liquidation or reorganization of, or appointment of a trustee or receiver for,
Voyager.
(c) OTHER CONSENTS AND FILINGS. All Governmental Consents and
Governmental Filings (other than the filing provided for in Section 1.5), all
consents, approvals, permits, authorizations, waivers and filings referred to in
Section 4.2(a) (except for any such which, in the aggregate, would not have a
Material Adverse Effect) and all other consents or approvals of any other person
determined to be required to permit the consummation of the transactions
contemplated hereby, including without limitation consents of parties to
Material Contracts, shall have been obtained or made to the reasonable
satisfaction of Howell.
(d) NEW YORK STOCK EXCHANGE LISTING. Howell shall have caused
the shares of Howell Common Stock issuable pursuant to this Agreement to have
been approved for listing, upon official notice of issuance, on the New York
Stock Exchange.
(e) DUE DILIGENCE. Howell shall have completed a due diligence
examination of Voyager, and the results of such examination shall be
satisfactory to Howell in Howell's sole discretion.
(f) HOWELL STOCKHOLDER APPROVAL. If required in order to
satisfy the condition set forth in paragraph (e) of this Section 5.1, this
Agreement and the transactions contemplated hereby shall have been approved by
the holders of a majority of the outstanding shares of Howell Common Stock in
accordance with applicable law and the Certificate of Incorporation and Bylaws
of Howell.
5.2. CONDITIONS TO THE OBLIGATIONS OF VOYAGER. The obligation of
Voyager to consummate the Merger is subject to the fulfillment at or prior to
the Effective Time of the following conditions, any or all of which may be
waived in whole or in part by Voyager to the extent permitted by applicable law.
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(a) REPRESENTATIONS AND WARRANTIES. Except for representations
and warranties specifically stated to be made only as of a specified date, the
representations and warranties of Howell and Newco set forth in this Agreement
shall be true and correct on and as of the Effective Time with the same force
and effect as though the same had been made on and as of the Effective Time
(except for such changes therein expressly permitted by this Agreement), Howell
and Newco shall have performed in all material respects all of their respective
obligations under this Agreement theretofore to be performed, and Voyager shall
have received at the Effective Time a certificate to that effect dated the
Closing Date and executed by an authorized executive officer of Howell and
Newco.
(b) INJUNCTION. There shall be in effect no preliminary or
permanent injunction or other order of a court or governmental or regulatory
agency of competent jurisdiction directing that the transactions contemplated
herein not be consummated.
(c) GOVERNMENTAL FILINGS AND CONSENTS. All Governmental
Consents and Governmental Filings (other than the filing provided for in Section
1.5) required to permit the consummation of the transactions contemplated hereby
shall have been obtained or made to the reasonable satisfaction of Voyager
(other than Governmental Consents and Governmental Filings which, if not
obtained or made, would not have a Material Adverse Effect).
(d) NEW YORK STOCK EXCHANGE LISTING. Howell shall have caused
the shares of Howell Common Stock issuable pursuant to this Agreement to have
been approved for listing, upon official notice of issuance, on the New York
Stock Exchange.
ARTICLE VI
TERMINATION
6.1. TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated
and the Merger may be abandoned at any time before the filing of the Articles of
Merger, before or after approval by holders of shares of Voyager Common Stock,
by the mutual consent of Howell, Newco and Voyager by action of their respective
boards of directors.
6.2. TERMINATION BY HOWELL, NEWCO OR VOYAGER. This Agreement may be
terminated and the Merger may be abandoned by action of either of the boards of
directors of Howell and Newco or the board of directors of Voyager if (a) the
Merger shall not have been consummated on or before November 30, 1997 or such
later date as may be mutually agreed to by the parties hereto, provided that the
party taking action to terminate this Agreement is not otherwise in breach in
any material respect of any of its obligations
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hereunder or (b) any court of competent jurisdiction or other governmental body
shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable.
6.3. TERMINATION BY HOWELL. This Agreement may be terminated and the
Merger may be abandoned by action of the boards of directors of Howell if
Voyager shall have failed to comply in any material respect with any of the
covenants or agreements contained in this Agreement to be complied with or
performed by it at or prior to the Effective Time and such failure has not been
cured within 30 days after receipt of notice thereof.
6.4. TERMINATION BY VOYAGER. This Agreement may be terminated and the
Merger may be abandoned by action of the board of directors of Voyager if Howell
or Newco shall have failed to comply in any material respect with any of the
covenants or agreements contained in this Agreement to be complied with or
performed by it at or prior to the Effective Time and such failure has not been
cured within 30 days after receipt of notice thereof.
6.5. EFFECT OF TERMINATION. In the event of a termination of this
Agreement pursuant to this Article VI, any rights and remedies which any of the
parties to this Agreement may have against any other such party by reason of
such termination shall not be affected thereby but shall be preserved and may be
exercised in accordance with applicable law.
ARTICLE VII
MISCELLANEOUS; GENERAL
7.1. FEES AND EXPENSES. Whether or not the Merger shall be
consummated, each party hereto shall pay its own expenses incident to
preparing for, entering into or carrying out this Agreement and the
consummation of the Merger.
7.2. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. No representations
or warranties contained in this Agreement shall survive the Effective Time.
7.3. MODIFICATION OR AMENDMENT. Subject to the applicable provisions
of the Act, at any time prior to the Effective Time, this Agreement may be
modified or amended by the mutual consent of Howell, Newco and Voyager, by
action of their respective boards of directors followed by written agreement
executed and delivered by duly authorized officers of the respective parties.
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7.4. WAIVER OF CONDITIONS. The conditions to each party's obligations
to consummate the Merger are for the sole benefit of such party and may be
waived by such party in whole or in part to the extent permitted by applicable
law.
7.5. COUNTERPARTS. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
7.6. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas without giving effect to the
principles of conflict of laws thereof.
7.7. NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and shall be
deemed to have been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight delivery, or five
calendar days after the same is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid, as set forth below, or to such other
persons or addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
If to Voyager:
Voyager Energy Corp.
Two Chasewood Park
20405 State Highway 249, Ste. 140
Houston, Texas 77070
Telecopy: (281) 370-7640
With a required copy to:
Mr. John E. Brewster, Jr.
530 Regentview Drive
Houston, Texas 77079
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If to Howell or Newco:
Howell Corporation
1500 Howell Corporation Building
1111 Fannin
Houston, Texas 77002
Telecopy: (713) 658-4007
Attention: Mr. Robert T. Moffett
With a required copy to:
Bracewell & Patterson, L.L.P.
South Tower Pennzoil Place
711 Louisiana, Suite 2900
Houston, Texas 77002
Telecopy: (713) 221-1212
Attention: Mr. John R. Brantley
7.8. DISCLOSURE LETTER AND EXHIBITS; ENTIRE AGREEMENT. All exhibits
and the Disclosure Letter and attachments to exhibits or the Disclosure
Letter, or documents expressly incorporated into this Agreement, and any
other attachments to this Agreement are hereby incorporated into this
Agreement and are hereby made a part hereof as if set out in full in this
Agreement. This Agreement supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and constitutes the entire agreement among the parties
hereto.
7.9. ASSIGNMENT. Prior to the Effective Time, this Agreement and the
rights and obligations of the parties hereto shall not be assignable, by
operation of law or otherwise, or delegable.
7.10. OBLIGATION OF HOWELL AND NEWCO OR VOYAGER. Whenever this
Agreement requires Howell, Newco or the Surviving Corporation to take any
action, such requirement shall be deemed to include an undertaking on the part
of Howell to cause such action to be taken. Whenever this Agreement requires
Voyager to take any action, such requirements shall be deemed to include an
undertaking on the part of Voyager to cause such action to be taken.
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7.11. TITLES AND CAPTIONS. The titles, captions and table of contents
contained in this Agreement are inserted herein only as a matter of convenience
and for reference and in no way deem, limit, extend or describe the scope of
this Agreement or the intent of any provisions hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto.
HOWELL CORPORATION
By: /s/ ROBERT T. MOFFETT
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Name: Robert T. Moffett
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Title: Vice President
---------------------------------
HOWELL ACQUISITION CORP.
By: /s/ ROBERT T. MOFFETT
------------------------------------
Name: Robert T. Moffett
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Title: Vice President
---------------------------------
VOYAGER ENERGY CORP.
By: /s/ DONALD W. CLAYTON
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Name: Donald W. Clayton
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Title: President
---------------------------------
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