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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is dated April 29, 1999 by
and between SHELL OFFSHORE INC., a Delaware corporation ("Shell") having a post
office address of ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and APACHE
CORPORATION, a Delaware corporation ("Apache"), the address for which is ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Shell and Apache are
sometimes separately referred to as a "Party" and are sometimes collectively
referred to as "Parties."
WHEREAS, the Parties and certain affiliates of Shell (collectively, the
"Shall Entities") have entered into an Asset Purchase Agreement dated even
herewith for the sale by the Shell Entities and purchase by Apache of certain
oil and gas properties (the "Asset Purchase Agreement"); and
WHEREAS, as a portion of the consideration to be paid by Apache
pursuant to the Asset Purchase Agreement, Shell has agreed to acquire and Apache
has agreed to issue shares of common stock of Apache;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and in the Asset Purchase Agreement, the benefits to be derived by each
Party hereunder and thereunder, and other good and valuable consideration, the
Parties agree as follows:
SECTION 1 - DEFINITIONS
All capitalized terms used herein and not otherwise defined have the meanings
set forth in the Asset Purchase Agreement.
SECTION 2 - PURCHASE AND SALE OF THE SHARES
2.1 PURCHASE AND SALE OF THE SHARES: On the terms and subject to the
conditions of the Asset Purchase Agreement and this Agreement, at the
Closing, Apache shall issue and sell to Shell 1,000,000 shares (the
"Shares") of the common stock, par value $1.25 per share, of Apache
("Apache Common Stock") and Shell shall acquire and purchase the Shares
from Apache.
2.2 CONSIDERATION FOR THE SHARES: The Shares are being issued in connection
with and as part of the consideration for the acquisition by Apache of
certain oil and gas properties from Shell pursuant to the Asset
Purchase Agreement.
2.3 SHARE CERTIFICATE: Apache shall deliver to Shell at the Closing a stock
certificate representing the Shares in appropriate form.
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SECTION 3 - REPRESENTATIONS AND WARRANTIES OF SHELL
Shell hereby represents and warrants to Apache as of the date hereof and as of
the Closing that:
3.1 Shell is acquiring the Shares for its own account and not as a nominee
or agent or otherwise for any other person.
3.2 Shell is acquiring the Shares for investment purposes and not with a
view to, or for resale in connection with, any distribution any of the
Shares in violation of the Securities Act of 1933, as amended.
3.3 Shell has such knowledge, sophistication and experience in business,
tax and financial matters that Shell is capable of evaluating and is
familiar with the merits and risks of an investment in the Shares, can
bear substantial economic risk of an investment in the Shares for an
indefinite period of time and can afford a complete loss of such
investment.
3.4 Shell has received from Apache, and has had the opportunity to review,
the following documents concerning Apache:
(i) Prospectus dated September 21, 1995 relating to 1,350,000
shares of Apache Common Stock registered pursuant to a
registration statement described in Section 4.1 below,
(ii) Prospectus supplement dated ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇▇) Annual Report on Form 10-K for the year ended December 31,
1998,
(iv) Current Report on Form 8-K dated March 2, 1999 (as amended by
Amendment No. 1 on Form 8-K/A filed on March 5, 1999), and
(v) Proxy Statement for annual meeting of stockholders to be held
on May 6, 1999.
Shell acknowledges that certain information conveyed to it under item
(ii) above contains material nonpublic information concerning Apache
and that the federal securities laws prohibit trading in securities
while in possession of material nonpublic information, and Shell agrees
to maintain the confidentiality of such information.
3.5 Shell acknowledges that (i) none of Apache, any affiliate thereof or
any person representing Apache or any affiliate thereof has made any
representation to it with respect to Apache or the offering or sale of
the Shares, other than the information concerning Apache and the
offering contained in the documents set forth in Section 3.4 or the
Asset Purchase Agreement, (ii) in making its investment decision Shell
is not relying upon any information given by Apache or any affiliate
thereof or any person representing Apache or any affiliate thereof
other than the information concerning Apache and the offering contained
in the documents set forth in Section 3.4 and the Asset Purchase
Agreement and (iii) no representation has been made, and no information
has been furnished, to Shell in connection with the offering or sale of
the Shares that was in any way inconsistent with any other information
with which Shell has been provided.
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3.6 Shell understands the Apache is relying upon the representations and
warranties contained in this Agreement for purposes of determining
whether it is appropriate to issue the Shares to Shell.
3.7 Shell is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Shell has full power
and authority to enter into this Agreement and consummate the
transactions contemplated by this Agreement. This Agreement has been
duly and validly authorized, executed and delivered on behalf of Shell
and is a valid and binding agreement of Shell enforceable in accordance
with its terms, subject as to enforceability to general principles of
equity and to bankruptcy or other laws affecting the enforcement of
creditors' rights generally.
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF APACHE
Apache hereby represents and warrants to Shell as of the date hereof and as of
the Closing that:
4.1 Apache has prepared and filed with the Securities and Exchange
Commission ("Commission") a registration statement on Form S-4 (No.
33-61669) that covers the registration of the Shares under the
Securities Act of 1933, as amended ("Securities Act"), and the sale of
the Shares pursuant to the Asset Purchase Agreement and this Agreement
in accordance with Rule 415 of the rules and regulations of the
Commission under the Securities Act, and has prepared and filed such
amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission, and no stop order suspending the effectiveness of the
registration statement has been issued by the Commission.
4.2 The Shares have been duly and validly authorized for issuance, offer
and sale pursuant to this Agreement. The Shares, when issued and
delivered against payment of the consideration therefor in accordance
with this Agreement and the Asset Purchase Agreement, will be validly
issued, fully paid and non-assessable shares of Apache Common Stock.
4.3 On or prior to the date of the Closing, the Shares will have been
listed for trading on the New York Stock Exchange and the Chicago Stock
Exchange.
4.4 Apache is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Apache has full power
and authority to enter into this Agreement and consummate the
transactions contemplated by this Agreement. This Agreement has been
duly and validly authorized, executed and delivered on behalf of Apache
and is a valid and binding agreement of Apache enforceable in
accordance with its terms, subject as to enforceability to general
principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally.
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SECTION 5 - TRANSFER RESTRICTIONS AND RESALES
5.1 NINETY DAY HOLDING PERIOD: In addition to any restrictions that might
apply as set forth in other subsections of this Section, Shell agrees
that during a period of ninety days from the date of this Agreement it
will not, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of,
or otherwise dispose of or transfer any of the Shares or (ii) enter
into any swap or any other agreement or transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of the Shares, whether any such swap or other transaction is
to be settled by delivery of the Shares or other securities, in cash or
otherwise (collectively, the "lock-up"); provided, however, that Apache
agrees that (x) Apache will, after the date of this Agreement, consult
with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") on an on-going basis concerning
the continued need for the lock-up provided for in this subsection and
(y) promptly following Apache's receipt of advice from Goldman that
such lock-up is no longer required in connection with Apache's planned
underwritten public offering of equity securities, Apache will give
Shell notice that the restrictions set forth in this subsection are
terminated and such restrictions shall cease.
5.2 RESALES: Shell acknowledges that since it and its affiliates may be
deemed to be "affiliates" for purposes of Rule 145 promulgated under
the Securities Act at the time the Shares are issued, such Shares can
be sold only (i) pursuant to an effective registration statement under
the Securities Act, (ii) in conformity with the volume, manner of sale
and other limitations of Rule 145(d) promulgated under the Securities
Act, or (iii) in reliance upon an exemption from registration that is
available under the Securities Act.
Shell also acknowledges and agrees that stop-transfer instructions will
be given to Apache's transfer agent with respect to the Shares and that
there will be placed on the certificates representing such Shares, or
any substitutions therefor, a legend stating in substance as follows:
"These shares were issued in a transaction to which Rule 145
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), applies. These shares may only be
transferred in accordance with the terms of such Rule or as
otherwise provided under the Securities Act."
It is understood and agreed that the legend set forth above shall be
removed, upon surrender of certificates bearing such legend, by
delivery of substitute certificates without such legend if Shell shall
have satisfied Apache that the sale or disposition of the shares
represented by the surrendered certificates may be effected without
registration of the offering, sale and delivery of such shares under
the Securities Act.
SECTION 6 - CONDITIONS PRECEDENT
The Parties' obligations pursuant to this Agreement shall be subject to the
occurrence of the Closing pursuant to the Asset Purchase Agreement, and if the
Asset Purchase Agreement is terminated without the Closing being consummated,
then this Agreement shall terminate simultaneously therewith and be void and of
no further force or effect.
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SECTION 7 - ADMINISTRATIVE PROVISIONS
7.1 PROVISIONS INCORPORATED BY REFERENCE: The following provisions of the
Asset Purchase Agreement are incorporated by reference into this
Agreement and shall apply to this Agreement as if set forth in full
herein; provided that each reference to "PURCHASER" and "SELLER"
therein shall become a reference to "Apache" and "Shell," respectively,
herein: Sections 10.1 through 10.7, Sections 10.9, 10.10, 10.11, 10.13
and 10.14.
7.2 GOVERNING LAW: This Agreement shall be governed and interpreted
according to the laws of the State of Texas without giving effect to
principles of conflicts of laws.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
APACHE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP Business Development
Shell Offshore Inc.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
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