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Exhibit 2.3
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), is made and entered
into on May 12, 1998, by and between Lomak Petroleum, Inc., a Delaware
corporation ("Lomak"), and First Reserve Fund VII, Limited Partnership, a
Delaware limited partnership ("FRLP").
W I T N E S S E T H:
WHEREAS, FRLP beneficially owns shares of common stock, par value $.01
per share (the "Domain Common Stock"), of Domain Energy Corporation, a Delaware
corporation ("Domain").
WHEREAS, FRLP desires to sell to Lomak, and Lomak desires to purchase
from FRLP, 3,250,000 shares of Domain Common Stock (the "Shares") on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Purchase and Sale. FRLP agrees to sell, assign, transfer, and convey
to Lomak, and Lomak agrees to purchase, accept and receive from FRLP on July 1,
1998 (the "Effective Date"), the Shares at a price equal to $13.50 per Share,
for an aggregate purchase price of $43,875,000 (the "Purchase Price"). On the
Effective Date, Lomak shall deliver to FRLP the Purchase Price in immediately
available funds and FRLP shall deliver to Lomak certificates representing all of
the Shares, accompanied by stock powers duly executed in blank for transfer by
the record holders thereof, together with such other documents and instruments,
if any, as may be necessary to permit Lomak to acquire the Shares free and clear
of any and all claims, liens, pledges, charges, encumbrances, security interests
or other restrictions of any kind whatsoever adverse to Lomak (collectively,
"Encumbrances"). Notwithstanding the foregoing, if between the date of this
Agreement and the Effective Date the outstanding shares of Domain Common Stock
shall have been changed into a different number of shares or a different class,
by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares, the Shares to be
sold pursuant hereto and the Purchase Price per share shall be correspondingly
adjusted to reflect such stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares.
2. Representations and Warranties of Lomak. Lomak hereby represents and
warrants to FRLP that as of the date of this Agreement and the Effective Date:
(a) Lomak is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite corporate authority to execute and deliver this Agreement and to
perform all of the transactions contemplated by this Agreement to be performed
by it;
(b) The execution and delivery by Lomak of this Agreement, and
the consummation of the transactions contemplated by this Agreement to be
performed by Lomak, have
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been duly authorized by all necessary corporate action on the part of Lomak, and
this Agreement will, when executed and delivered by FRLP, constitute a valid and
binding obligation of Lomak, enforceable against Lomak in accordance with its
terms;
(c) There are no actions or proceedings pending or threatened
against Lomak before any court or administrative agency which do or will
adversely affect Link's ability to perform its obligations under this Agreement;
(d) Neither this Agreement nor the consummation of the
transactions contemplated herein conflict with or result in a breach, default or
violation of (i) any of the terms, provisions or conditions of the Certificate
of Incorporation or Bylaws of Lomak or (ii) any agreement, proxy, document,
instrument, judgment, decree, order, governmental permit, certificate, license,
law, statute, rule or regulation to which Lomak is a party or to which it is
subject; and
(e) No consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Agreement or Lomak's performance of the terms of
this Agreement or the validity or enforceability of this Agreement.
3. Representations and Warranties of FRLP. FRLP hereby represents and
warrants to Lomak that as of the date of this Agreement and the Effective Date:
(a) FRLP is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite partnership authority to execute and deliver this Agreement and to
perform all of the transactions contemplated by this Agreement to be performed
by it;
(b) The execution and delivery by FRLP of this Agreement, and
the consummation of the transactions contemplated by this Agreement to be
performed by FRLP, have been duly authorized by all necessary partnership action
on the part of FRLP, and this Agreement will, when executed and delivered by
Lomak, constitute a valid and binding obligation of FRLP, enforceable against
FRLP in accordance with its terms;
(c) FRLP has good and valid title to the Shares, and upon
delivery of the Shares to Lomak against delivery by Lomak to FRLP of the
Purchase Price as provided in this Agreement, Lomak will have good and valid
title to, the Shares, free and clear of any and all Encumbrances, and the sole
and unrestricted voting power and power of disposition with respect thereto;
(d) There are no actions or proceedings pending or threatened
against FRLP before any court or administrative agency which do or will
adversely affect FRLP's ability to perform under this Agreement;
(e) Neither this Agreement nor anything provided to be done
hereunder, including, without limitation, the transfer of the Shares as herein
contemplated will (i) conflict with or result in a breach, default or violation
of (A) any of the terms, provisions or conditions of the
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Certificate of Limited Partnership or limited partnership agreement of FRLP or
(B) any agreement, proxy, document, instrument, judgment, decree, order,
governmental permit, certificate, license, law, statute, rule or regulation to
which FRLP is a party or to which it is subject or (ii) result in the creation
of any Encumbrance on any Shares; and
(f) No consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required to permit the execution and
delivery of this Agreement or FRLP's performance of the terms of this Agreement
or the validity or enforceability of this Agreement.
4. Investment Representation and Acknowledgment of Lomak. Lomak
acknowledges that the Shares have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state, and the Shares have
not been approved by the Securities and Exchange Commission, the security
commission of any state, or any other regulatory authority, nor have the merits
of the Shares been passed upon by any regulatory authority. Lomak represents and
warrants that it has independently assessed the risks of this investment and is
purchasing the Shares from FRLP for investment only and not with a view or
intent to resell or distribute all or any part of the Shares acquired from FRLP.
5. Further Assurances. Each of the parties will, at any time, upon the
request of any other party hereto, take, or cause to be taken, all actions and
do, or cause to be done, all things (including without limitation executing,
acknowledging and delivering any additional agreements, instruments and
documents) as may be necessary, appropriate or advisable in order to consummate
or make effective transactions contemplated by, this Agreement.
6. Miscellaneous.
(a) NOTICES. All notices or communications hereunder shall be
in writing (including facsimile or similar writing) addressed as follows:
To Lomak:
Lomak Petroleum, Inc.
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
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With a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: J. Xxxx Xxxxx
Facsimile No.: (000) 000-0000
To FRLP:
First Reserve Fund VII, Limited Partnership
c/o First Reserve Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Any such notice or communication shall be deemed given (i) when made, if made by
hand delivery, and upon confirmation of receipt, if made by facsimile, (ii) one
business day after being deposited with a next-day courier, postage prepaid, or
(iii) three business days after being sent certified or registered mail, return
receipt requested, postage prepaid, in each case addressed as above (or to such
other address as such party may designate in writing from time to time).
(b) SEPARABILITY. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
(c) ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, and assigns; provided, however, that neither this
Agreement nor any rights hereunder shall be assignable or otherwise subject to
hypothecation and any assignment in violation hereof shall be null and void.
(d) INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(e) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same Agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to each party.
(f) ENTIRE AGREEMENT. This Agreement represents the entire
Agreement of the parties with respect to the subject matter hereof and shall
supersede any and all previous contracts, arrangements or understandings between
the parties hereto with respect to the subject matter hereof.
(g) GOVERNING LAW. This Agreement shall be construed,
interpreted, and governed in accordance with the laws of Delaware, without
reference to rules relating to conflicts of law.
(h) ATTORNEYS' FEES. If any action at law or equity, including
an action for declaratory relief, is brought to enforce or interpret any
provision of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and expenses from the other party, which fees and
expenses shall be in addition to any other relief which may be awarded.
(i) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified except by an
instrument in writing signed by all the parties hereto.
(j) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(k) SPECIFIC PERFORMANCE. Each party recognizes that its
failure to carry out the terms of this Agreement could result in financial
injury to the other party which would be substantial and not susceptible of
measurement. Accordingly, each party agrees that the other party shall be
entitle to (i) require such party specifically to perform its obligations under
this Agreement and (ii) xxx in any court of competent jurisdiction to obtain
such specific performance.
(l) WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE
THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING RELATING TO
THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
LOMAK PETROLEUM, INC.
By:
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Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
FIRST RESERVE FUND VII,
LIMITED PARTNERSHIP
By: First Reserve Corporation,
its general partner
By:
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Name:
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Title:
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