EXHIBIT 10
XXXXXX X. XXXXXX
0000 Xxx Xxxxxx #00X
Xxxxxxx, XX 00000
ST. LUKE'S EPISCOPAL HOSPITAL
0000 Xxxxxxx
Xxxxxxx, XX 00000
November 27, 2002
Anadarko Petroleum Corporation
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000-0000
Re: Donation of Shares
Dear Sirs:
Xxxxxx X. Xxxxxx, the undersigned stockholder (the "Stockholder") of
Xxxxxx Corporation ("Xxxxxx"), is party to a Support/Voting Agreement (the
"Voting Agreement"), dated September 26, 2002, between the Stockholder and
Anadarko Petroleum Corporation ("Anadarko") a copy of which is attached as
Exhibit A to this letter agreement. The Voting Agreement relates to the
Agreement and Plan of Merger, dated as of September 29, 2002, by and among
Anadarko, Belair Merger Corp. ("Subcorp") and Xxxxxx (the "Merger Agreement").
The Merger Agreement provides for, among other things, the merger of Subcorp
with and into Xxxxxx (the "Merger"). Capitalized terms which are used herein but
not defined herein shall have their respective meaning as set forth in the
Voting Agreement.
In accordance with Section 5 of the Voting Agreement, at the request of
Anadarko, immediately prior to the execution of this letter agreement, the
Stockholder has executed and delivered to Anadarko an irrevocable proxy, a copy
of which is attached hereto as Exhibit B (the "Proxy"), with respect to all of
the shares set forth in Schedule I to the Voting Agreement.
The Stockholder acknowledges that, pursuant to Section 2 of the Voting
Agreement, the Stockholder shall not, and shall not permit any company, trust or
other entity controlled by the Stockholder to, contract to sell, sell or
otherwise transfer or dispose of any of the shares of the capital stock of
Xxxxxx listed in Schedule I to the Voting Agreement or any interest therein or
securities convertible thereinto or any voting rights with respect thereto,
other than (a) pursuant to the Merger or (b) with Anadarko's prior written
consent.
The Stockholder wishes to transfer 10,000 shares of common stock of
Xxxxxx (collectively, the "Donated Shares") to St. Luke's Episcopal Hospital
(the "Donee") and the Donee wishes to receive from the Stockholder the Donated
Shares (the "Donation"), and
accordingly the Stockholder and the Donee hereby seek Anadarko's consent under
the Voting Agreement to effect the Donation.
Anadarko has advised the Stockholder that it is willing to consent to
the Donation but only on the basis that Anadarko is assured of receiving from
and after the Donation the benefits intended to be provided to Anadarko under
the Voting Agreement. Accordingly, by executing and delivering this letter
agreement to Anadarko, the Stockholder and the Donee hereby acknowledge and
agree to the following:
1. In accordance with Section 11 of the Voting Agreement, the Donee
agrees that, from and after the Donation, it shall be bound by the terms of the
Voting Agreement with respect to the Donated Shares, provided, however, that the
Donee may sell Donated Shares in open market regular way transactions on the New
York Stock Exchange to unknown purchasers. The Stockholder agrees that it is,
and from and after the Donation remains, bound by the terms of the Voting
Agreement with respect to all of the Shares, including the Donated Shares, and
that the Voting Agreement shall remain in full force and effect.
2. The Proxy is a valid irrevocable proxy with respect to the Shares,
executed and delivered by the Stockholder to Anadarko in accordance with the
Voting Agreement, and is coupled with an interest within the meaning of Section
212(e) of the Delaware General Corporation Law, both prior to and following
consummation of the Donation.
3. During the term of the Voting Agreement, (a) the Stockholder shall
not revoke, and shall not take any action which may have the effect of revoking,
the Proxy prior to the termination of the Voting Agreement, (b) the Stockholder
shall not grant any form of proxy or power of attorney to any person or entity,
including the Donee, with respect to the Shares or any portion thereof,
including the Donated Shares, and (c) the Donee shall not take any action
seeking to invalidate or cause the revocation of the Proxy or seeking any other
proxy with respect to the Donated Shares.
4. Unless the Proxy shall expire, be deemed invalid or revoked or
otherwise not given effect for any reason, during the term of the Voting
Agreement, the Donee shall not seek to vote, or attempt to grant any form of
proxy or power of attorney to vote, the Shares or any portion thereof, including
the Donated Shares. If and to the extent the Proxy shall expire, be deemed
invalid or revoked or otherwise not given effect for any reason, during the term
of the Voting Agreement, (a) the Donee shall immediately execute and deliver a
valid irrevocable proxy with respect to the Donated Shares in the form of Annex
A to the Voting Agreement to Anadarko, and (b) the Stockholder shall immediately
execute and deliver a valid irrevocable proxy with respect to all of the Shares
over which it has voting power in the form of Annex A to the Voting Agreement to
Anadarko in accordance with the Voting Agreement.
5. (a) Prior to, and as a condition to, effecting the Donation, the
following legend shall be affixed to the certificates representing the Donated
Shares, and shall not be removed prior to the termination of the Voting
Agreement, provided, however, that Anadarko shall promptly agree to removal of
the legend if Anadarko is reasonably assured that the Donated Shares are being
sold in open market regular way transactions on the New York Stock Exchange to
unknown purchasers:
The shares of Xxxxxx Common Stock represented hereby (the "Shares") are
subject to a Support/Voting Agreement dated as of September 27, 2002 and a
Letter Agreement dated as of November __, 2002 pursuant to which the Shares
are subject to limitations on transfer (except for open market regular way
transactions on the New York Stock Exchange to unknown purchasers) and
pursuant to which an irrevocable proxy coupled with an interest has been
executed and delivered in favor of Anadarko Petroleum Corporation. A copy
of each of the Support/Voting Agreement, the Letter Agreement and the
irrevocable proxy are on file, and available from, the Xxxxxx Corporation
corporate secretary.
(b) Simultaneously with the execution of this letter
agreement, Stockholder and Donee have provided Anadarko with, or have caused to
be provided to Anadarko, a true and complete photocopy of the certificate(s)
representing the Donated Shares, including the legend required under Subsection
(a) which has been affixed thereto, and all stock powers or endorsements
executed by or on behalf of the Stockholder to effect the Donation of the
Donated Shares to the Donee.
6. Upon the request of Anadarko, each of the Donee and the Stockholder
shall promptly take such other action and shall execute and deliver such other
documents and instruments as may be necessary to deliver to Anadarko the
benefits intended to be provided to Anadarko under the Voting Agreement.
7. Each of the Donee and the Stockholder represents and warrants that
he, she or it has all necessary power and authority to enter into this letter
agreement. This letter agreement (including the terms and conditions of the
Voting Agreement) is the legal, valid and binding agreement of each of the
Stockholder and the Donee, and is enforceable against each of the Stockholder
and the Donee in accordance with its terms.
8. Each of the Stockholder and the Donee agrees that damages are an
inadequate remedy for the breach by the Stockholder or the Donee of any term or
condition of this letter agreement (including the terms and conditions of the
Voting Agreement), and that Anadarko shall be entitled to a temporary
restraining order and preliminary and permanent injunctive relief in order to
enforce the agreements herein.
9. This letter agreement shall be governed by the laws of the State of
Delaware without regard to the principles of conflicts of laws thereof. All
actions and proceedings arising out of or relating to this letter agreement
shall be heard and determined in any state or federal court sitting in the
District of Delaware.
10. Each of the Stockholder and the Donee irrevocably submits to the
exclusive jurisdiction of the state courts of Delaware and to the jurisdiction
of the United States District Court for the District of Delaware, for the
purpose of any action or proceeding arising out of or relating to this letter
agreement and each of the Stockholder and the Donee irrevocably agrees that all
claims in respect to such action or proceeding may be heard and determined
exclusively in any state or federal court sitting in the District of Delaware.
Each of the Stockholder and the Donee agrees that a final judgment in any action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other
manner provided by law. Each of the Stockholder and the Donee irrevocably
consents to the service of any summons and complaint and any other process in
any other action or proceeding relating hereto, on behalf of itself or its
property, by the personal delivery of copies of such process to such party.
Nothing in this Section 10 shall affect the right of any party hereto to serve
legal process in any other manner permitted by law.
11. This letter agreement, together with the Voting Agreement,
constitutes the entire agreement among the parties hereto with respect to the
matters covered hereby and supersedes all prior agreements, understandings or
representations among the parties written or oral, with respect to the subject
matter hereof.
12. This letter agreement shall remain in effect during the term of the
Voting Agreement.
* * *
In consideration of and subject to the foregoing, by executing and returning a
copy of this letter agreement to each of the Stockholder and the Donee, Anadarko
hereby consents to the Donation.
Very truly yours,
Stockholder:
/s/ Xxxxxx X. Xxxxxx
-------------------------------------------
XXXXXX X. XXXXXX
Donee:
ST. LUKE'S EPISCOPAL HOSPITAL
By: Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Confirmed on the date
first above written.
Anadarko Petroleum Corporation
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
