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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 22, 2023
Chevron Corporation |
(Exact name of registrant as specified in its charter) |
Delaware |
|
001-00368 |
|
94-0890210 |
(State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification No.) |
6001 Bollinger Canyon Road, San Ramon, CA |
|
94583 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
(925) 842-1000 |
Registrant’s telephone number, including area code |
|
N/A |
(Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
☒ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol |
|
Name of each exchange on which registered |
Common stock, par value $.75 per share |
|
CVX |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement. |
On October 22, 2023,
Chevron Corporation (“Chevron”) entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with Hess Corporation (“Hess”) and Yankee Merger Sub Inc., a direct, wholly-owned subsidiary of Chevron (“Merger
Subsidiary”). The Merger Agreement provides that, among other things and subject to the terms and conditions of the Merger Agreement,
Merger Subsidiary will be merged with and into Hess, with Hess surviving and continuing as the surviving corporation of the Merger and
as a direct, wholly-owned subsidiary of Chevron (such transaction, the “Merger”).
At the effective time of
the Merger (the “Effective Time”), each outstanding share of common stock of Hess, par value $1.00 per share (the “Hess
Common Stock”), will be converted into the right to receive 1.025 (the “Exchange Ratio”) shares of common
stock of Chevron, par value $0.75 per share (“Chevron Common Stock”), plus cash in lieu of any fractional shares of
Chevron Common Stock that otherwise would have been issued (the “Merger Consideration”).
Pursuant to the Merger
Agreement, at the Effective Time, (i) each then outstanding Hess stock option and restricted stock award and each then outstanding performance
share unit (“PSU”) award granted on or after the date of the Merger Agreement will be converted into corresponding
Chevron equity awards based on the Exchange Ratio, subject to the same terms and conditions applicable to such awards immediately prior
to the Effective Time (except that any performance conditions applicable to such PSU award will be deemed to be achieved at the target
level as of the Effective Time) and (ii) each then outstanding PSU award granted prior to the date of the Merger Agreement will be deemed
to be earned at the maximum level and converted into a restricted cash award in an amount per PSU award equal to the average closing trading
price of a share of Chevron Common Stock for the 20 business days ending on and including the second to last business day prior to the
Effective Time multiplied by the Exchange Ratio, and in each case shall remain subject to the same terms and conditions as applied to
such awards immediately prior to the Effective Time (other than the performance conditions).
The board of directors
of Hess has unanimously approved the Merger Agreement and resolved to recommend the adoption of the Merger Agreement by Hess
stockholders, who will be asked to vote on the adoption of the Merger Agreement at a stockholders meeting. The board of directors of
Chevron also unanimously approved the Merger Agreement.
The completion of the Merger
is subject to satisfaction or waiver of certain customary mutual closing conditions, including (1) the receipt of the required approval
from Hess stockholders, (2) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the “HSR Act”), (3) the absence of any order or law prohibiting consummation of the Merger, (4)
the effectiveness of the Registration Statement on Form S-4 to be filed by Chevron pursuant to which the shares of Chevron Common Stock
to be issued in connection with the Merger will be registered with the U.S. Securities and Exchange Commission (the “SEC”),
and (5) the authorization for listing on the New York Stock Exchange of the shares of Chevron Common Stock to be issued in connection
with the Merger. The obligation of each party to consummate the Merger is also conditioned upon the other party having performed in all
material respects its obligations under the Merger Agreement and the other party’s representations and warranties in the Merger
Agreement being true and correct (subject to certain materiality qualifiers).
The Merger Agreement contains
customary representations and warranties of Chevron and Hess relating to their respective businesses, financial statements and public
filings, in each case generally subject to customary materiality qualifiers. Additionally, the Merger Agreement provides for customary
pre-closing covenants of Hess and Chevron, including a covenant of Hess relating to using all reasonable best efforts to conduct its business
in the ordinary course, subject to certain exceptions, and covenants of each party to refrain from taking certain actions without the
other party’s consent. Hess and Chevron also agreed to use their respective reasonable best efforts to cause the Merger to be consummated,
to avoid or eliminate impediments under any antitrust laws or other applicable laws, and to obtain expiration or termination of the waiting
period under the HSR Act, subject to certain exceptions.
The Merger Agreement provides
that, during the period from the date of the Merger Agreement until the Effective Time or the earlier termination of the Merger Agreement,
Hess is subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, provide non-public
information to third parties and engage in negotiations with third parties regarding alternative acquisition proposals, subject to certain
exceptions.
The Merger Agreement contains
termination rights for each of Hess and Chevron, including, among others, (1) if the consummation of the Merger does not occur on or before
April 18, 2024 (the “End Date”); except that the End Date will automatically be successively extended to October 22,
2024, April 22, 2025 and October 22, 2025 if all required applicable regulatory approvals have not been obtained by what would otherwise
be the End Date but all other conditions to closing have been satisfied (other than those conditions that by their terms are to be satisfied
at the closing, each of which is capable of being satisfied) or (to the extent permitted by law) waived; and (2) subject to certain conditions,
if Hess desires to terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal (as such term
is defined in the Merger Agreement). Upon termination of the Merger Agreement under specified circumstances, including the termination
by Chevron in the event of a change of recommendation by the board of directors of Hess or by Hess in order to enter into a definitive
agreement with respect to a Superior Proposal, Hess would be required to pay Chevron a termination fee of $1,715,000,000.
The foregoing description
of the Merger Agreement and the transactions contemplated thereby in this Current Report on Form 8-K is only a summary and does not purport
to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit
2.1 hereto and incorporated by reference herein. The parties expect to file the registration statement on Form S-4 containing Chevron’s
preliminary prospectus and Hess’s preliminary proxy statement as promptly as practicable.
The Merger Agreement has
been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about
Hess or Chevron. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger
Agreement as of the specific dates therein, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations
agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual
risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality
applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under
the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations
of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information
concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information
may or may not be fully reflected in Hess’s or Chevron’s public disclosures.
Voting and Support Agreement
Concurrently with the
execution and delivery of the Merger Agreement, Chevron entered into a Voting and Support Agreement (the “Voting
Agreement”) with Hess and John B. Hess, whereby Mr. Hess has agreed to vote 29,222,682 shares of
Hess Common Stock of which he has sole or shared record and/or beneficial ownership (approximately 9.5% of the outstanding Hess
Common Stock) in favor of, among other things, the adoption of the Merger Agreement.
The foregoing description
is not complete and is qualified in its entirety by reference to the full text of the Voting Agreement, which is attached hereto as Exhibit
99.1 and is incorporated herein by reference.
FORWARD-LOOKING STATEMENTS
This communication contains “forward-looking
statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as amended. You can identify these statements and other forward-looking statements
in this document by words such as “expects,” “focus,” “intends,” “anticipates,” “plans,”
“targets,” “poised,” “advances,” “drives,” “aims,” “forecasts,”
“believes,” “approaches,” “seeks,” “schedules,” “estimates,” “positions,”
“pursues,” “progress,” “may,” “can,” “could,” “should,” “will,”
“budgets,” “outlook,” “trends,” “guidance,” “commits,” “on track,”
“objectives,” “goals,” “projects,” “strategies,” “opportunities,” “potential,”
“ambitions,” “aspires” and similar expressions, and variations or negatives of these words, but not all forward-looking
statements include such words.
Forward-looking statements by their nature
address matters that are, to different degrees, uncertain, such as statements about the consummation of the potential transaction, including
the expected time period to consummate the potential transaction, and the anticipated benefits (including synergies) of the potential
transaction. All such forward-looking statements are based upon current plans, estimates, expectations and ambitions that are subject
to risks, uncertainties and assumptions, many of which are beyond the control of Chevron and Hess, that could cause actual results to
differ materially from those expressed in such forward-looking statements. Key factors that could cause actual results to differ materially
include, but are not limited to the risk that regulatory approvals are not obtained or are obtained subject to conditions that are not
anticipated by Chevron and Hess; potential delays in consummating the potential transaction, including as a result of regulatory approvals;
Chevron’s ability to integrate Hess’ operations in a successful manner and in the expected time period; the possibility that
any of the anticipated benefits and projected synergies of the potential transaction will not be realized or will not be realized within
the expected time period; the occurrence of any event, change or other circumstance that could give rise to the termination of the merger
agreement; risks that the anticipated tax treatment of the potential transaction is not obtained; unforeseen or unknown liabilities; customer,
shareholder, regulatory and other stakeholder approvals and support; unexpected future capital expenditures; potential litigation relating
to the potential transaction that could be instituted against Chevron and Hess or their respective directors; the possibility that the
transaction may be more expensive to complete than anticipated, including as a result of unexpected factors or events; the effect of the
announcement, pendency or completion of the potential transaction on the parties’ business relationships and business generally;
risks that the potential transaction disrupts current plans and operations of Chevron or Hess and potential difficulties in Hess employee
retention as a result of the transaction, as well as the risk of disruption of Chevron’s or Hess’ management and business
disruption during the pendency of, or following, the potential transaction; the receipt of required Chevron Board of Directors’
authorizations to implement capital allocation strategies, including future dividend payments; uncertainties as to whether the potential
transaction will be consummated on the anticipated timing or at all, or if consummated, will achieve its anticipated economic benefits,
including as a result of risks associated with third party contracts containing material consent, anti-assignment, transfer or other provisions
that may be related to the potential transaction which are not waived or otherwise satisfactorily resolved; changes in commodity prices;
negative effects of this announcement, and the pendency or completion of the proposed acquisition on the market price of Chevron’s
or Hess’ common stock and/or operating results; rating agency actions and Chevron’s and Hess’ ability to access short-
and long-term debt markets on a timely and affordable basis; various events that could disrupt operations, including severe weather, such
as droughts, floods, avalanches and earthquakes, and cybersecurity attacks, as well as security threats and governmental response to them,
and technological changes; labor disputes; changes in labor costs and labor difficulties; the effects of industry, market, economic, political
or regulatory conditions outside of Chevron’s or Hess’ control; legislative, regulatory and economic developments targeting
public companies in the oil and gas industry; and the risks described in Part I, Item 1A “Risk Factors” of (i) Chevron’s
Annual Report on Form 10-K for the year ended December 31, 2022 and (ii) Hess’ Annual Report on Form 10-K for the year ended December
31, 2022, and, in each case, in subsequent filings with the U.S. Securities and Exchange Commission (“SEC”). Other unpredictable
or factors not discussed in this communication could also have material adverse effects on forward-looking statements. Neither Chevron
nor Hess assumes an obligation to update any forward-looking statements, except as required by law. You are cautioned not to place undue
reliance on any of these forward-looking statements as they are not guarantees of future performance or outcomes and that actual performance
and outcomes. These forward-looking statements speak only as of the date hereof.
CAUTIONARY NOTE TO INVESTORS
This communication uses certain terms
relating to resources other than proved reserves, such as unproved reserves or resources. Investors are urged to consider closely
the oil and gas disclosures in Hess’ Annual Report on Form 10-K, File No. 1-1204, available from Hess Corporation, 1185 Avenue
of the Americas, New York, New York 10036 c/o Corporate Secretary and on Hess’ website at www.hess.com. You can also obtain
this form from the SEC on the EDGAR system.
IMPORTANT INFORMATION FOR INVESTORS AND STOCKHOLDERS
This communication does not constitute an offer to sell or the solicitation
of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities
Act. In connection with the potential transaction, Chevron expects to file a registration statement on Form S-4 with the SEC containing
a preliminary prospectus of Chevron that also constitutes a preliminary proxy statement of Hess. After the registration statement is declared
effective, Hess will mail a definitive proxy statement/prospectus to stockholders of Hess. This communication is not a substitute for
the proxy statement/prospectus or registration statement or for any other document that Chevron or Hess may file with the SEC and send
to Hess’ stockholders in connection with the potential transaction. INVESTORS AND SECURITY HOLDERS OF CHEVRON AND HESS ARE URGED
TO READ THE PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of the proxy statement/prospectus
(when available) and other documents filed with the SEC by Chevron or Hess through the website maintained by the SEC at http://www.sec.gov.
Copies of the documents filed with the SEC by Chevron will be available free of charge on Chevron’s website at http://www.chevron.com/investors.
Copies of the documents filed with the SEC by Hess will be available free of charge on Hess’ website at http://www.hess.com/investors.
Chevron and Hess and certain of their respective directors, certain
of their respective executive officers and other members of management and employees may be considered participants in the solicitation
of proxies with respect to the potential transaction under the rules of the SEC. Information about the directors and executive officers
of Chevron is set forth in its Annual Report on Form 10-K for the year ended December 31, 2022, which was filed with the SEC on February
23, 2023, and its proxy statement for its 2023 annual meeting of stockholders, which was filed with the SEC on April 12, 2023. Information
about the directors and executive officers of Hess is set forth in its Annual Report on Form 10-K for the year ended December 31, 2022,
which was filed with the SEC on February 24, 2023, and its proxy statement for its 2023 annual meeting of stockholders, which was filed
with the SEC on April 6, 2023. These documents can be obtained free of charge from the sources indicated above. Additional information
regarding the interests of such participants in the solicitation of proxies in respect of the potential transaction will be included in
the registration statement and proxy statement/prospectus and other relevant materials to be filed with the SEC when they become available.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit No. |
|
Description |
2.1 |
|
Agreement and Plan of Merger, dated as of October 22, 2023, by and among Chevron Corporation, Yankee Merger Sub Inc., and Hess Corporation.* |
99.1 |
|
Voting and Support Agreement, dated October 22, 2023, by and among Chevron Corporation, Hess Corporation, and John B. Hess. |
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
*Annexes, schedules and/or exhibits have been
omitted pursuant to Item 601(b)(2) of Regulation S-K. Chevron hereby agrees to furnish supplementally a copy of any omitted
attachment to the SEC on a confidential basis upon request.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: October 23, 2023
|
CHEVRON CORPORATION
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By: |
/s/ Christine L. Cavallo |
|
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Name: |
Christine L. Cavallo |
|
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Title: |
Assistant Secretary |
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EXHIBIT 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF
MERGER
dated as of
October 22, 2023
among
CHEVRON CORPORATION,
YANKEE MERGER SUB INC.
and
HESS CORPORATION
TABLE OF CONTENTS
Page
Article I THE MERGER |
2 |
Section 1.1 The Merger |
2 |
Section 1.2 Certificate of Incorporation and By-Laws of the Surviving Corporation |
3 |
Section 1.3 Governance Matters; Directors and Officers of the Surviving Corporation |
3 |
Section 1.4 Effect on Capital Stock |
3 |
Section 1.5 Equity Awards |
4 |
Article II EXCHANGE OF CERTIFICATES |
7 |
Section 2.1 Surrender and Payment |
7 |
Section 2.2 Fractional Shares |
9 |
Section 2.3 Lost Certificates |
10 |
Section 2.4 Withholding Rights |
10 |
Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
11 |
Section 3.1 Corporate Existence and Power |
11 |
Section 3.2 Corporate Authorization |
13 |
Section 3.3 Governmental Authorization |
13 |
Section 3.4 Non-Contravention |
14 |
Section 3.5 Capitalization |
15 |
Section 3.6 Subsidiaries |
16 |
Section 3.7 SEC Filings |
19 |
Section 3.8 Financial Statements |
20 |
Section 3.9 Disclosure Documents |
20 |
Section 3.10 Controls and Procedures |
21 |
Section 3.11 Absence of Certain Changes |
22 |
Section 3.12 No Undisclosed Material Liabilities |
22 |
Section 3.13 Litigation |
23 |
Section 3.14 Taxes |
23 |
Section 3.15 Employee Benefit Plans; Employment |
24 |
Section 3.16 Compliance with Laws |
27 |
Section 3.17 Regulatory Matters |
27 |
Section 3.18 Environmental Matters |
30 |
Section 3.19 Title to Properties |
31 |
Section 3.20 Hydrocarbon Contracts |
31 |
Section 3.21 Material Contracts |
32 |
Section 3.22 Intellectual Property |
35 |
Section 3.23 Brokers; Financial Advisor |
36 |
Section 3.24 Opinion of Financial Advisor |
36 |
Section 3.25 Takeover Statutes |
37 |
Section 3.26 Reorganization |
37 |
Section 3.27 No Additional Representations |
37 |
Article IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY |
38 |
Section 4.1 Corporate Existence and Power |
38 |
Section 4.2 Corporate Authorization |
39 |
Section 4.3 Governmental Authorization |
40 |
Section 4.4 Non-Contravention |
40 |
Section 4.5 Capitalization |
41 |
Section 4.6 SEC Filings |
42 |
Section 4.7 Financial Statements |
42 |
Section 4.8 Disclosure Documents |
42 |
Section 4.9 Controls and Procedures |
43 |
Section 4.10 Absence of Certain Changes |
44 |
Section 4.11 No Undisclosed Material Liabilities |
44 |
Section 4.12 Litigation |
45 |
Section 4.13 Compliance with Laws |
45 |
Section 4.14 Regulatory Matters |
45 |
Section 4.15 Capitalization of Merger Subsidiary |
46 |
Section 4.16 Reorganization |
46 |
Section 4.17 Ownership of Company Common Stock |
46 |
Section 4.18 No Additional Representations |
46 |
Article V COVENANTS OF THE COMPANY |
47 |
Section 5.1 Conduct of the Company |
47 |
Section 5.2 Company Stockholder Meeting; Proxy Material |
54 |
Section 5.3 Resignation of Company Directors |
59 |
Section 5.4 Other Actions |
59 |
Section 5.5 Certain Actions |
59 |
Article VI COVENANTS OF PARENT |
59 |
Section 6.1 Conduct of Parent |
60 |
Section 6.2 Obligations of Merger Subsidiary |
60 |
Section 6.3 Director and Officer Liability |
61 |
Section 6.4 Form S-4 |
63 |
Section 6.5 Stock Exchange Listing |
63 |
Section 6.6 Employee Benefits |
63 |
Article VII COVENANTS OF PARENT AND THE COMPANY |
66 |
Section 7.1 Reasonable Best Efforts |
66 |
Section 7.2 Certain Filings |
68 |
Section 7.3 Access to Information |
69 |
Section 7.4 Tax Treatment |
69 |
Section 7.5 Public Announcements |
70 |
Section 7.6 Further Assurances |
70 |
Section 7.7 Notices of Certain Events |
71 |
Section 7.8 No Solicitation |
71 |
Section 7.9 Takeover Statutes |
74 |
Section 7.10 Section 16(b) |
74 |
Section 7.11 Coordination of Quarterly Dividends |
74 |
Section 7.12 Stock Exchange Delisting; Deregistration |
75 |
Section 7.13 Treatment of Company Indebtedness |
75 |
Section 7.14 Transaction Litigation |
78 |
Section 7.15 Parent Vote |
78 |
Section 7.16 No Control of Other Party’s Business |
78 |
Section 7.17 Applicability of Provisions to the MLP and Opco |
78 |
Article VIII CONDITIONS TO THE MERGER |
79 |
Section 8.1 Conditions to the Obligations of Each Party |
79 |
Section 8.2 Additional Conditions to the Obligations of Parent and Merger Subsidiary |
79 |
Section 8.3 Additional Conditions to the Obligations of the Company |
80 |
Section 8.4 Frustration of Closing Conditions |
81 |
Article IX TERMINATION |
81 |
Section 9.1 Termination |
81 |
Section 9.2 Effect of Termination |
83 |
Article X MISCELLANEOUS |
83 |
Section 10.1 Notices |
83 |
Section 10.2 Non-Survival of Representations and Warranties |
84 |
Section 10.3 Amendments; No Waivers |
84 |
Section 10.4 Expenses |
85 |
Section 10.5 Company Termination Fee |
85 |
Section 10.6 Successors and Assigns |
86 |
Section 10.7 Governing Law |
86 |
Section 10.8 Enforcement; Jurisdiction |
87 |
Section 10.9 Waiver of Jury Trial |
87 |
Section 10.10 Counterparts; Effectiveness |
87 |
Section 10.11 Entire Agreement |
87 |
Section 10.12 Captions |
88 |
Section 10.13 Severability |
88 |
Section 10.14 Interpretation |
88 |
EXHIBITS
Exhibit A — Voting and Support Agreement
Exhibit B — Form of Certificate of Incorporation of Surviving Corporation
DEFINED TERMS
1999 Base Indenture |
Section 7.13(e)(i) |
1999 Base Indenture Trustee |
Section 7.13(e)(i) |
2006 Base Indenture |
Section 7.13(e)(i) |
2006 Base Indenture Trustee |
Section 7.13(e)(i) |
2023 Pre-Signing PSU Award |
Section 1.5(c)(i)(2) |
2024 Notes |
Section 7.13(e)(i) |
2027 Notes |
Section 7.13(e)(i) |
2029 Notes |
Section 7.13(e)(i) |
2031 Notes |
Section 7.13(e)(i) |
2033 Notes |
Section 7.13(e)(i) |
2040 Notes |
Section 7.13(e)(i) |
2041 Notes |
Section 7.13(e)(i) |
2047 Notes |
Section 7.13(e)(i) |
Acquisition Proposal |
Section 7.8(b) |
Affected Employees |
Section 6.6(b) |
Agreement |
Preamble |
Anti-Corruption Laws |
Section 3.17(d)(i) |
Anti-Discrimination Laws |
Section 3.15(h) |
Antitrust Laws |
Section 7.1(a) |
Book-Entry Shares |
Section 1.4(b) |
Cap Amount |
Section 6.3(d) |
CERCLA |
Section 3.18(b) |
Certificate |
Section 1.4(b) |
Certificate of Merger |
Section 1.1(b) |
Change in Control |
Section 6.6(a) |
Change in the Company Recommendation |
Section 5.2(a) |
Change of Control Price |
Section 1.5(c)(iv) |
Closing |
Section 1.1(d) |
Closing Date |
Section 1.1(d) |
Code |
Recitals |
Common Shares Trust |
Section 2.2(b) |
Company |
Preamble |
Company 10-K |
Section 3.7(a) |
Company 10-Q |
Section 3.7(a) |
Company 401(k) Plans |
Section 6.6(f) |
Company Balance Sheet |
Section 3.8 |
Company Balance Sheet Date |
Section 3.8 |
Company Benefit Plans |
Section 3.15(a) |
Company By-Laws |
Section 3.1 |
Company Capital Stock |
Section 3.5 |
Company Charter |
Section 3.1 |
Company Common Stock |
Recitals |
Company Credit Agreement |
Section 5.1(k) |
Company Disclosure Schedules |
Article III |
Company Environmental Permits |
Section 3.18(a) |
Company Intellectual Property |
Section 3.22(a) |
Company Material Adverse Effect |
Section 3.1 |
Company Measurement Date |
Section 3.5 |
Company Option |
Section 1.5(a) |
Company Owned Intellectual Property |
Section 3.22(a) |
Company Pension Plan |
Section 3.15(e) |
Company Preferred Stock |
Section 3.5 |
Company Proxy Statement |
Section 3.9(a) |
Company Recommendation |
Section 5.2(f) |
Company Retiree Plans |
Section 6.6(c) |
Company RS Award |
|
Company SEC Documents |
Section 3.7(a) |
Company Securities |
Section 3.5 |
Company Stockholder Approval |
Section 3.2(a) |
Company Stockholder Meeting |
Section 5.2(f) |
Company Subsidiary Securities |
Section 3.6(b) |
Company Termination Fee |
Section 10.5(a)(iii) |
Confidentiality Agreement |
Section 7.3 |
Consent Solicitation |
Section 7.13(b) |
Contract |
Section 3.21(a) |
COVID-19 |
Section 5.1 |
COVID-19 Measures |
Section 5.1 |
Creditors’ Rights |
Section 3.2(a) |
De Minimis Inaccuracies |
Section 8.2(a) |
Debt Offer |
Section 7.13(b) |
Debt Offer Documents |
Section 7.13(b) |
Debt Offers |
Section 7.13(b) |
Delaware Court |
Section 10.8 |
DGCL |
Recitals |
E&P Assets |
Section 5.1(i) |
Economic Sanctions/Trade Laws |
Section 3.17(d)(ii) |
Effect |
Section 3.1 |
Effective Time |
Section 1.1(b) |
End Date |
Section 9.1(b)(i) |
Environmental Laws |
Section 3.18(b) |
ERISA |
Section 3.15(a) |
ERISA Affiliate |
Section 3.15(d) |
Excess Shares |
Section 2.2(a) |
Exchange Act |
Section 3.3 |
Exchange Agent |
Section 2.1(a) |
Exchange Ratio |
Section 1.4(a) |
FCC |
Section 3.3 |
Foreign Company Benefit Plan |
Section 3.15(a) |
Form S 4 |
Section 4.8(a) |
GAAP |
Section 3.8 |
Goldman Sachs |
37 |
Government Official |
Section 3.17(a) |
GP |
Section 3.6(c) |
Hazardous Substance |
Section 3.18(b) |
Hess GP Interest |
Section 3.6(c) |
HINDL |
Section 3.6(c) |
HSR Act |
Section 3.3 |
Hydrocarbon Contract |
Section 3.20(a) |
Hydrocarbons |
Section 3.20(a) |
Indemnified Liabilities |
Section 6.3(a) |
Indemnified Persons |
Section 6.3(a) |
Indentures |
Section 7.13(e)(ii) |
Initial End Date |
Section 9.1(b)(i) |
Intellectual Property |
Section 3.22(a) |
Intervening Event |
Section 5.2(b)(ii) |
Intervening Event Match Period |
Section 5.2(b)(ii) |
Intervening Event Notice |
Section 5.2(b)(ii) |
knowledge |
Section 3.10(e) |
Legal Restraint |
Section 9.1(c) |
Letter of Credit Documents |
Section 7.13(e)(iv) |
Lien |
Section 3.4 |
Material Contract |
Section 3.21(b) |
Merger |
Recitals |
Merger Consideration |
Section 1.4(a) |
Merger Subsidiary |
Preamble |
MLP |
Section 3.6(a) |
MLP 10-K |
Section 3.7(b) |
MLP 10-Q |
Section 3.7(b) |
MLP Balance Sheet |
Section 3.8 |
MLP Class A Shares |
Section 3.6(c) |
MLP Class B Shares |
Section 3.6(c) |
MLP Credit Agreement |
Section 5.1(k) |
MLP Partnership Agreement |
Section 3.6(c) |
MLP Partnership Interests |
Section 3.6(c) |
MLP SEC Documents |
Section 3.7(b) |
MLP Securities |
Section 3.6(c) |
Money Laundering Laws |
Section 3.17(d)(iii) |
Notes |
Section 7.13(e)(i) |
NYSE |
Section 3.3, Section 2.2(a) |
OFAC |
Section 3.17(d)(ii) |
Opco |
Section 3.6(a) |
Opco Class A Units |
Section 3.6(c) |
Opco Class B Units |
Section 3.6(c) |
Opco Partnership Agreement |
Section 3.6(c) |
Opco Partnership Interests |
Section 3.6(c) |
Parent |
Preamble |
Parent 10-K |
Section 4.6(a) |
Parent 10-Q |
Section 4.6(a) |
Parent Balance Sheet |
Section 4.7 |
Parent Balance Sheet Date |
Section 4.7 |
Parent Common Stock |
Recitals |
Parent Common Stock Issuance |
Recitals |
Parent Disclosure Schedules |
|
Parent Material Adverse Effect |
Section 4.1 |
Parent Measurement Date |
Section 4.5 |
Parent Preferred Stock |
Section 4.5 |
Parent Retiree Plans |
Section 6.6(c) |
Parent SEC Documents |
Section 4.6(a) |
Parent Securities |
Section 4.5 |
Partnership Interests |
Section 3.6(c) |
Payoff Amount |
Section 7.13(a) |
Permitted Arrangement |
Section 3.4 |
Permitted Lien |
Section 3.4 |
person |
Section 2.1(c) |
Person |
Section 2.1(c) |
Personal Data |
37 |
Pre-2023 PSU Award |
Section 1.5(c)(i)(1) |
Pre-Signing PSU Award |
Section 1.5(c)(i) |
Privacy Policies |
Section 3.22(c) |
Proceeding |
Section 6.3(a) |
PSU Cash Amount |
Section 1.5(c)(iv) |
RCRA |
Section 3.18(b) |
Release |
Section 3.18(b) |
Reorganization Treatment |
Section 7.4(a) |
Sanctions Target |
Section 3.17(d)(iv) |
Sarbanes-Oxley Act |
Section 3.10(a) |
SEC |
Section 1.5(e)(ii) |
Section 3.10(b) Disclosures |
Section 3.10(b) |
Securities Act |
Section 3.3 |
Significant Stockholder |
Recitals |
Significant Subsidiaries |
Section 3.6(a) |
Specified Contracts |
Section 3.21(a)(xi) |
Subject Indebtedness |
Section 7.13(a) |
Subsidiary |
Section 3.6(a) |
Substantial Detriment |
Section 7.1(c) |
Superior Proposal |
Section 7.8(b) |
Superior Proposal Match Period |
Section 5.2(b)(i) |
Superior Proposal Notice |
Section 5.2(b)(i) |
Support Agreement |
Recitals |
Surviving Corporation |
Section 1.1(a) |
Tax Proceeding |
Section 3.14(b) |
Tax Returns |
Section 3.14 |
Taxes |
Section 3.14 |
Transaction Litigation |
Section 7.14 |
Transactions |
Recitals |
Trustees |
Section 7.13(e)(iii) |
WARN Act |
Section 5.1(h) |
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”)
dated as of October 22, 2023 is by and among Chevron Corporation, a Delaware corporation (“Parent”), Yankee Merger
Sub Inc., a newly formed Delaware corporation and a wholly-owned Subsidiary of Parent (“Merger Subsidiary”), and Hess
Corporation, a Delaware corporation (the “Company”).
W I T N E S S E T H:
WHEREAS, it is proposed that, upon the terms and
subject to the conditions set forth in this Agreement, at the Effective Time, Merger Subsidiary will be merged with and into the Company
(the “Merger”) in accordance with the applicable provisions of the Delaware General Corporation Law (the “DGCL”),
with the Company surviving the Merger as the Surviving Corporation (as defined below) and a direct, wholly-owned subsidiary of Parent;
WHEREAS, the Board of Directors of Parent, at
a meeting duly called and held on or prior to the date of this Agreement, has unanimously (a) determined that this Agreement and
the issuance of the shares of common stock of Parent, par value $0.75 per share (“Parent Common Stock”), pursuant to
this Agreement (the “Parent Common Stock Issuance”) and the other transactions contemplated hereby (the “Transactions”),
are fair to, and in the best interests of, Parent and Parent’s stockholders and (b) approved and declared advisable this Agreement
and the Transactions;
WHEREAS, the Board of Directors of the Company,
at a meeting duly called and held on or prior to the date of this Agreement, has unanimously (a) determined that this Agreement and
the transactions contemplated hereby (including the Merger) are fair to and in the best interests of the Company’s stockholders,
(b) approved and declared advisable this Agreement and the transactions contemplated hereby (including the Merger), (c) directed
that the adoption of this Agreement be submitted to a vote at a meeting of the holders of shares of common stock, par value $1.00 per
share, of the Company (the “Company Common Stock”) and (d) resolved (subject to Section 5.2 and Section 7.8)
to recommend the adoption of this Agreement by the holders of Company Common Stock;
WHEREAS, the Board of Directors of Merger Subsidiary
has by unanimous vote (a) determined that this Agreement and the Transactions are fair to, and in the best interests of, Merger Subsidiary’s
sole stockholder, (b) approved and declared advisable this Agreement and the Transactions and (c) submitted this Agreement to
the sole stockholder of Merger Subsidiary, for adoption thereby and recommended that the sole stockholder approve and adopt this Agreement
and the Transactions;
WHEREAS, concurrently with the execution of this
Agreement and as a condition to Parent’s willingness to enter into this Agreement, John B. Hess (the “Significant Stockholder”)
has entered into a Voting and Support Agreement, dated as of the date of this Agreement (the “Support Agreement”) in
substantially the form attached hereto as Exhibit A, pursuant to which, among other things, the Significant Stockholder has agreed
to vote all shares of Company Common Stock of which he is the sole or shared record and/or beneficial owner in
favor of the adoption of this Agreement and to take certain other
actions in furtherance of the Transactions, in each case, on the terms and subject to the conditions provided for in the Support Agreement;
and
WHEREAS, for U.S. federal income tax purposes,
it is intended that the Merger qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the “Code”), and this Agreement is hereby adopted as a “plan of reorganization”
within the meaning of Treasury Regulations sections 1.368-2(g) and 1.368-3(a).
NOW, THEREFORE, in consideration of the promises
and the respective representations, warranties, covenants and agreements set forth herein, the parties hereto agree as follows:
Article
I
THE MERGER
Section 1.1
The Merger.
(a)
Upon the terms and subject to the conditions set forth in this Agreement, (i) at the Effective Time (as defined below), Merger
Subsidiary shall be merged with and into the Company in accordance with the requirements of the DGCL, whereupon the separate existence
of Merger Subsidiary shall cease, and the Company shall be the surviving corporation in the Merger (the “Surviving Corporation”),
such that following the Merger, the Surviving Corporation will be a direct, wholly-owned subsidiary of Parent.
(b)
On the Closing Date, immediately after the Closing, the Company will file a certificate of merger with respect to the Merger with
the Secretary of State of the State of Delaware (the “Certificate of Merger”) and the parties shall make all other
filings or recordings required by the DGCL in connection with the Merger. The Merger shall become effective at such time as the Certificate
of Merger is duly filed with the Secretary of State of the State of Delaware or at such later time as Parent and the Company may agree
and is specified in the Certificate of Merger (the “Effective Time”).
(c)
From and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises and
be subject to all of the restrictions, disabilities and duties of the Company and Merger Subsidiary, all as provided under the DGCL.
(d)
The closing of the Merger (the “Closing”) shall take place at the offices of Paul, Weiss, Rifkind, Wharton &
Garrison LLP, 1285 Avenue of the Americas, New York, New York, 10019 or remotely by exchange of documents and signatures (or
their electronic counterparts) on the second (2nd) Business Day following the day on which the last to be fulfilled or waived of the conditions
set forth in Article VIII (other than those conditions that by their nature are to be fulfilled at the Closing, but subject
to the fulfillment or waiver of such conditions) shall be fulfilled or waived in accordance with this Agreement (but no later than the
End Date) (or at such other place and time as the Company and Parent may agree in writing). The date on which the Closing occurs is referred
to in this Agreement as the “Closing Date”.
Section 1.2
Certificate of Incorporation and By-Laws of the Surviving Corporation
.. Subject to Section 6.3:
(a)
At the Effective Time, by virtue of the Merger, the certificate of incorporation of the Company, as in effect immediately prior
to the Effective Time, shall be amended and restated in its entirety as set forth in Exhibit B, and as so amended and restated,
shall be the certificate of incorporation of the Surviving Corporation from and after the Effective Time, until thereafter amended in
accordance with its terms and the DGCL.
(b)
At the Effective Time, the by-laws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated
to read in its entirety as set forth in the by-laws of the Merger Subsidiary, as in effect immediately prior to the Effective Time, except
that all references therein to Merger Subsidiary shall be automatically amended and shall become references to the Surviving Corporation,
and as so amended and restated, shall be the by-laws of the Surviving Corporation from and after the Effective Time, until thereafter
amended in accordance with their terms, the DGCL and the certificate of incorporation of the Surviving Corporation.
Section 1.3
Governance Matters; Directors and Officers of the Surviving Corporation.
(a)
Parent and the Board of Directors of Parent shall take all actions necessary such that, effective as of the Effective Time, John
B. Hess shall be appointed as a member of the Board of Directors of Parent, subject to such individual’s acceptance of such appointment
at or prior to (and which acceptance remains effective as of) the Effective Time.
(b)
The directors of Merger Subsidiary immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation,
each to hold office in accordance with the certificate of incorporation and by-laws of the Surviving Corporation, and the officers of
Merger Subsidiary immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, in each case until
their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.
Section 1.4
Effect on Capital Stock.
(a)
At the Effective Time, subject to the other provisions of Articles I and II, each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock to be canceled pursuant
to Section 1.4(d) and any shares of Company Common Stock covered under Section 1.5) shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted into and shall thereafter represent the right to receive 1.025
(the “Exchange Ratio”) share of validly issued, fully paid and non-assessable shares of Parent Common Stock (the “Merger
Consideration”).
(b)
From and after the Effective Time, all of the shares of Company Common Stock converted into the right to receive the Merger Consideration
pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and retired and shall cease
to exist, and each holder of (x) a certificate (each a “Certificate”) or (y) non-certificated
shares represented by book-entry (“Book-Entry Shares”)
previously representing any such shares of Company Common Stock shall thereafter cease to have any rights with respect thereto, except
the right to receive (i) the Merger Consideration, (ii) any dividends or other distributions with a record date prior to the
Effective Time which have been declared by the Company in accordance with this Agreement and which remain unpaid at the Effective Time,
and any dividends and other distributions in accordance with Section 2.1(f), and (iii) any cash to be paid in lieu of
any fractional share of Parent Common Stock in accordance with Section 2.2.
(c)
If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares
of capital stock of Parent or the Company shall occur by reason of any reclassification, recapitalization, stock split or combination,
exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the Merger Consideration, the
Exchange Ratio and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide the holders of
shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such event; provided that (i) nothing
in this Section 1.4 shall be construed to permit the Company or Parent to take any action with respect to its securities that
is otherwise prohibited by the terms of this Agreement and (ii) cash dividends and grants of equity compensation not prohibited by
the terms hereof shall not result in any adjustment to the Exchange Ratio.
(d)
At the Effective Time, all shares of Company Common Stock that are owned directly by Parent, Merger Subsidiary or the Company shall,
by virtue of the Merger and without any action on the part of the holder thereof or any of their respective direct or indirect wholly-owned
Subsidiaries, be cancelled and retired and shall cease to exist and no stock of Parent, cash or other consideration shall be delivered
in exchange therefor. For the avoidance of doubt, this Section 1.4(d) shall not apply to shares of Company Common Stock held
in trust or otherwise set aside from shares held in the Company’s treasury pursuant to a Company Benefit Plan (as such term is defined
in Section 3.15).
(e)
At the Effective Time, each issued and outstanding share of common stock, par value $0.01 per share, of Merger Subsidiary issued
and outstanding immediately prior to the Effective Time shall remain outstanding as one fully paid and nonassessable share of common stock,
par value $0.01 per share, of the Surviving Corporation.
Section 1.5
Equity Awards.
(a)
At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each outstanding stock
option with respect to shares of Company Common Stock (each, a “Company Option”), whether or not vested, shall cease
to represent a Company Option, and shall thereafter constitute a stock option, on the same terms and conditions as were applicable under
such Company Option immediately prior to the Effective Time, including any provisions for acceleration (which includes those provided
in Section 9.01(a) of the Company 2017 Long Term Incentive Plan), with respect to the number of shares of Parent Common Stock (rounded
down to the nearest whole number) determined by multiplying (x) the number of shares of Company Common Stock subject to such
Company Option immediately prior to the Effective Time by (y) the Exchange Ratio. The exercise price
per share of Parent Common Stock subject to any such Company Option
at and after the Effective Time shall be an amount (rounded up to the nearest one hundredth of a cent) equal to (A) the exercise
price per share of Company Common Stock subject to such Company Option immediately prior to the Effective Time divided by (B) the
Exchange Ratio.
(b)
At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each award of restricted
stock (each, a “Company RS Award”) that corresponds to shares of Company Common Stock that is outstanding as of the
Effective Time, whether or not vested, shall cease to represent a Company RS Award with respect to Company Common Stock and shall thereafter
constitute a restricted stock award, on the same terms and conditions as were applicable under such Company RS Award immediately prior
to the Effective Time, including any provisions for acceleration (which includes those provided in Section 9.01(a) of the Company 2017
Long Term Incentive Plan), with respect to the number of shares of Parent Common Stock determined by multiplying (x) the number
of shares of Company Common Stock subject to such Company RS Award immediately prior to the Effective Time by (y) the Exchange
Ratio; provided, that no fractional shares of Parent Common Stock shall be delivered, and in lieu thereof, on the applicable vesting
date, the holder shall become entitled to receive a cash payment (without interest and rounded to the nearest cent) based on the closing
trading price of Parent Common Stock as reported by Bloomberg, L.P. on such date. For the avoidance of doubt, any amounts relating to
dividends and other distributions, if any, with respect to such Company RS Award that are accrued or accumulated but unpaid as of the
Effective Time will carry over and will be paid in accordance with the terms and conditions as were applicable to such Company RS Award
immediately prior to the Effective Time.
(c)
At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each award of performance
share units for which vesting is conditioned in full or in part based on achievement of performance goals or metrics (each, a “Company
PSU Award”) that corresponds to shares of Company Common Stock that is outstanding of the Effective Time shall be treated as
follows:
(i)
Each Company PSU Award granted prior to the date hereof (each, a “Pre-Signing PSU Award”) shall cease to represent
a Company PSU Award with respect to Company Common Stock and shall thereafter constitute a right to receive a cash payment (rounded to
the nearest cent), on the same terms and conditions as were applicable under such Company PSU Award immediately prior to the Effective
Time (other than any performance-based conditions), in an amount equal to the sum of the PSU Cash Amount (as defined below) and any dividend
equivalent rights (calculated assuming that any performance-based vesting conditions applicable to such Company PSU Award are achieved
at the maximum level) credited with respect to such Company PSU Award, without interest and less applicable withholding Taxes. The Surviving
Corporation shall pay the applicable PSU Cash Amount through the Surviving Corporation’s payroll systems, subject in all events
to compliance with Section 409A of the Code, if applicable.
(1)
With respect to any outstanding Pre-Signing PSU Award that was granted prior to January 1, 2023 (a “Pre-2023 PSU Award”),
the PSU Cash Amount in respect of such Pre-2023 PSU Award shall vest on the last day of the original performance cycle for such Pre-2023
PSU Award, subject to the holder’s continued employment
through such date (unless the service condition of such Pre-Signing
PSU Award has previously lapsed prior to the Closing, in which case there is no continued employment requirement and the applicable PSU
Cash Amount shall be subject to proration (if any) to the same extent as set forth in the applicable award agreement based on the reason
for the separation from service), and be paid as soon as reasonably practicable (but not later than March 15 of the year) following the
end of the original performance cycle; provided that the vesting and payment of such PSU Cash Amount shall be accelerated upon
certain qualifying terminations of employment in accordance with the applicable award agreement as in effect immediately prior to the
Closing Date, subject to any delay in payment with respect to any Pre-2023 PSU Award that constitutes nonqualified deferred compensation
under Section 409A of the Code.
(2)
With respect to any outstanding Pre-Signing PSU Award that was granted on or after January 1, 2023 but prior to the date hereof
(a “2023 Pre-Signing PSU Award”), the PSU Cash Amount in respect of such 2023 Pre-Signing PSU Award shall vest on the
earlier of (x) the last day of the original performance cycle for such 2023 Pre-Signing PSU Award and (y) March 15 of the year following
the year in which the Effective Time occurs, subject to the holder’s continued employment through the applicable vesting date (unless
the service condition of such 2023 Pre-Signing PSU Award has previously lapsed prior to the Closing, in which case there is no continued
employment requirement and the applicable PSU Cash Amount shall be subject to proration (if any) to the same extent as set forth in the
applicable award agreement based on the reason for the separation from service), and be paid as soon as reasonably practicable after the
applicable vesting date but no later than March 15 of the year following the year in which the Effective Time occurs; provided,
that the vesting and payment of such PSU Cash Amount shall be accelerated upon certain qualifying terminations of employment in accordance
with the applicable award agreement as in effect as of immediately prior to the Closing Date.
(ii)
Each Company PSU Award granted on or following the date hereof shall cease to represent a Company PSU Award with respect to Company
Common Stock and shall thereafter constitute a restricted stock unit award, on the same terms and conditions as were applicable under
such Company PSU Award immediately prior to the Effective Time (other than any performance-based conditions), including any provisions
for acceleration, with respect to the number of shares of Parent Common Stock (rounded to the nearest whole number) determined by multiplying
(x) the target number of shares of Company Common Stock subject to such Company PSU Award immediately prior to the Effective Time
by (y) the Exchange Ratio.
(iii)
For the avoidance of doubt, any amounts relating to any dividend equivalent rights credited with respect to any Company PSU Award
that are accrued or accumulated but unpaid as of the Effective Time will carry over and will be paid in accordance with the terms and
conditions as were applicable to such Company PSU Award immediately prior to the Effective Time.
(iv)
The “PSU Cash Amount” in respect of a Company PSU Award is equal to (x) the number of shares of Company
Common Stock earned with respect to such Company PSU Award determined assuming that any performance-based vesting conditions
applicable to such Company PSU Award are achieved at the maximum
level, multiplied by (y) the Change of Control Price. The “Change of Control Price” is the average closing trading
price of Parent Common Stock as reported by Bloomberg, L.P. for the twenty (20) Business Days ending on and including the second to last
Business Day prior to the Effective Time multiplied by the Exchange Ratio.
(d)
Prior to the Effective Time, the Board of Directors of the Company and/or the Compensation Committee of the Board of Directors
of the Company shall adopt resolutions approving the treatment of the Company equity awards pursuant to the terms of this Section
1.5.
(e)
Parent Actions.
(i)
Parent shall take all corporate action necessary to assume as of the Effective Time the Company’s obligations under the Company
Options and Company RS Awards and reserve for issuance a sufficient number of shares of Parent Common Stock for delivery pursuant to the
terms set forth in this Section 1.5.
(ii)
As soon as practicable after the Effective Time and in any event no later than five days after the Effective Time, Parent shall
file with the U.S. Securities and Exchange Commission (the “SEC”) a registration statement on an appropriate form or
a post-effective amendment to a previously filed registration statement under the Securities Act with respect to the Parent Common Stock
subject to equity-based awards described in this Section 1.5 and shall use its reasonable best efforts to maintain the current
status of the prospectus contained therein, as well as comply with any applicable state securities or “blue sky” laws, for
so long as such equity-based awards remain outstanding. From and after the date of this Agreement, the Company and its Subsidiaries shall
reasonably cooperate with Parent in preparing such registration statement(s) or post-effective amendment(s).
Article
II
EXCHANGE OF CERTIFICATES
Section 2.1
Surrender and Payment.
(a)
Prior to the Effective Time, Parent shall appoint a bank, trust company or nationally recognized stockholder services provider
or such other Person reasonably acceptable to the Company as the exchange agent (the “Exchange Agent”) for the purpose
of exchanging Certificates and Book-Entry Shares representing shares of Company Common Stock. Parent will make available to the Exchange
Agent, as needed, the Merger Consideration to be delivered in respect of the shares of Company Common Stock. Promptly after the Effective
Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the
Effective Time, a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of
loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) in such form as the Company and Parent
may reasonably agree, for use in effecting delivery of shares of
Company Common Stock to the Exchange Agent. Exchange of any Book-Entry
Shares shall be effected in accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b)
Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender
to the Exchange Agent of a Certificate or Book-Entry Share, together with a properly completed letter of transmittal, will be entitled
to receive (i) one or more shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate
is requested or required by applicable law) representing, in the aggregate, the number of shares of Parent Common Stock that such holder
has the right to receive pursuant to Section 1.4 and (ii) a check in the amount equal to any cash payable in lieu of
fractional shares which such holder has the right to receive pursuant to Section 2.2 and in respect of any dividends and other
distributions which such holder has the right to receive pursuant to Section 2.1(f). No interest shall be paid or accrued
on any Merger Consideration, cash payable in lieu of fractional shares or cash payable in respect of dividends and distributions payable
to holders of Certificates or Book-Entry Shares pursuant to Section 2.1(f). Until so surrendered, each such Certificate or
Book-Entry Share shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration.
(c)
If any portion of the Merger Consideration is to be registered in the name of a Person other than the Person in whose name the
applicable surrendered Certificate is registered, it shall be a condition to the registration thereof that the surrendered Certificate
shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration
shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of such registration in the name of a Person
other than the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid
or is not payable. Delivery of the aggregate Merger Consideration, as applicable, with respect to Book-Entry Shares shall only be made
to the Person in whose name such Book-Entry Shares are registered. For purposes of this Agreement, “Person” or “person”
means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or any agency or instrumentality thereof.
(d)
After the Effective Time, there shall be no further registration of transfers of shares of Company Common Stock. If, after the
Effective Time, Certificates or Book-Entry Shares are presented to the Exchange Agent, the Surviving Corporation or the Parent, they shall
be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article II.
(e)
Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.1(a) that remains
unclaimed by the holders of shares of Company Common Stock one year after the Effective Time shall be returned to Parent, or transferred
as otherwise directed by Parent, upon demand, and any such holder who has not exchanged his shares of Company Common Stock for the Merger
Consideration in accordance with this Section 2.1 prior to that time shall thereafter look only to Parent for delivery of
the Merger Consideration (and any cash payable in lieu of fractional shares which such holder has the right to receive pursuant to Section
2.2 and any dividends and distributions which such
holder has the right to receive pursuant to Section 2.1(f))
in respect of such holder’s shares. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares for any Merger
Consideration (and any cash payable in lieu of fractional shares which such holder has the right to receive pursuant to Section 2.2
and any dividends and distributions which such holder has the right to receive pursuant to Section 2.1(f)) delivered to a
public official pursuant to applicable abandoned property laws. Any Merger Consideration (and any cash payable in lieu of fractional shares
which such holder has the right to receive pursuant to Section 2.2 and any dividends and distributions which such holder has the
right to receive pursuant to Section 2.1(f)) remaining unclaimed by holders of shares of Company Common Stock three (3) years
after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property
of any governmental body, agency, authority or entity) shall, to the extent permitted by applicable law, become the property of Parent
free and clear of any claims or interest of any Person previously entitled thereto.
(f)
No dividends or other distributions with respect to shares of Parent Common Stock issued in the Merger shall be paid to the holder
of any unsurrendered Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered as provided in this
Section 2.1. Following such surrender, there shall be paid, without interest, to the record holder of the shares of Parent
Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect
of such shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender
and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such
shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes
of dividends or other distributions in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant
to the Merger shall be entitled to dividends or other distributions pursuant to the immediately preceding sentence as if issued and outstanding
as of the Effective Time.
(g)
The Exchange Agent shall invest any cash delivered by Parent pursuant to Section 2.1(a) as directed by Parent; provided
that no losses on such investments shall affect the cash payable to former holders of shares of Company Common Stock pursuant to this
Article II. Any interest and other income resulting from such investments shall be paid promptly to Parent.
Section 2.2
Fractional Shares.
(a)
No fractional shares of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of shares of Company
Common Stock otherwise entitled to a fractional share of Parent Common Stock will be entitled to receive, from the Exchange Agent in accordance
with the provisions of this Section 2.2 and subject to the provisions of Section 2.1, a cash payment (without interest and
rounded to the nearest cent) in lieu of such fractional shares of Parent Common Stock representing such holder’s proportionate interest,
if any, in the proceeds from the sale by the Exchange Agent in one or more transactions of shares of Parent Common Stock equal to the
excess of (x) the aggregate number of shares of Parent Common Stock to be delivered to the Exchange Agent by Parent pursuant to Section
2.1(a) over (y) the aggregate number of whole shares of Parent Common Stock to be distributed
to the holders of Certificates or Book-Entry Shares pursuant to
Section 2.1(b) (such excess being herein called the “Excess Shares”). The parties acknowledge that payment
of the cash consideration in lieu of issuing fractional shares was not separately bargained-for consideration but merely represents a
mechanical rounding off for purposes of avoiding the expense and inconvenience to Parent that would otherwise be caused by the issuance
of fractional shares. As soon as practicable after the Effective Time, the Exchange Agent, as agent for the holders of the Certificates
and Book-Entry Shares representing shares of Company Common Stock, shall sell the Excess Shares at then prevailing prices on the New York
Stock Exchange (“NYSE”) in the manner provided in the following paragraph.
(b)
The sale of the Excess Shares by the Exchange Agent, as agent for the holders that would otherwise receive fractional shares, shall
be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. Until
the proceeds of such sale or sales have been distributed to the holders of shares of Company Common Stock, the Exchange Agent shall hold
such proceeds in trust for the holders of shares of Company Common Stock (the “Common Shares Trust”). The Exchange
Agent shall determine the portion of the Common Shares Trust to which each holder of shares of Company Common Stock shall be entitled,
if any, by multiplying the amount of the aggregate proceeds comprising the Common Shares Trust by a fraction, the numerator of which is
the amount of the fractional share interest to which such holder of shares of Company Common Stock would otherwise be entitled and the
denominator of which is the aggregate amount of fractional share interests to which all holders of shares of Company Common Stock would
otherwise be entitled.
(c)
As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of shares of Company Common
Stock in lieu of any fractional shares of Parent Common Stock, the Exchange Agent shall make available such amounts to such holders of
shares of Company Common Stock without interest, subject to and in accordance with Section 2.1.
Section 2.3
Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Surviving Corporation,
the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent will, if such holder has otherwise delivered a properly
completed and duly executed letter of transmittal, issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration
to be paid in respect of the shares of Company Common Stock represented by such Certificate as contemplated by this Article II.
Section 2.4
Withholding Rights. Notwithstanding anything in this Agreement to the contrary, each of the Surviving Corporation, Parent,
the Company, Merger Subsidiary and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable
to any Person pursuant to Articles I and II such amounts as it is required to deduct or withhold (or cause to
be deducted and withheld) with respect to the making of such payment under any provision of federal, state, local or foreign Tax law (and
to the extent deduction and
withholding is required, such deduction and withholding may be taken
in Parent Common Stock). To the extent that amounts are so deducted or withheld by the Surviving Corporation, Parent, the Company, Merger
Subsidiary or the Exchange Agent, as the case may be, and paid over to the applicable governmental body, agency, authority or entity in
accordance with applicable law, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid
to the Person in respect of which such deduction or withholding was made by the Surviving Corporation, Parent, the Company, Merger Subsidiary
or the Exchange Agent, as the case may be, and, if withholding is taken in Parent Common Stock, the relevant withholding party shall be
treated as having sold such Parent Common Stock on behalf of such Person for an amount of cash equal to the fair market value thereof
at the time of such deemed sale and paid such cash proceeds to the appropriate taxing authority.
Article
III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent
that, except as disclosed (i) in the Company SEC Documents or, solely with respect to any representations made regarding Hess Midstream
LP (the “MLP”) and its Subsidiaries, the MLP SEC Documents (as hereinafter defined), in each case filed or furnished
on or after January 1, 2021 and prior to the date of this Agreement (excluding any disclosures in such Company SEC Documents or the
MLP SEC Documents in any risk factors section, in any section related to forward looking statements and other disclosures that are predictive
or forward-looking in nature, in each case other than any description of historic facts or events included therein) or (ii) in the
correspondingly numbered section of the disclosure schedules delivered by the Company to Parent simultaneously with the execution of this
Agreement (the “Company Disclosure Schedules”) (it being agreed that disclosure of any item in any section or subsection
of the Company Disclosure Schedules shall be deemed disclosure with respect to any other section or subsection of this Agreement to which
the relevance of such item is reasonably apparent, notwithstanding the omission of a cross-reference to such other section or subsection):
Section 3.1
Corporate Existence and Power. The Company is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has all corporate powers and all governmental franchises, licenses, permits, authorizations, consents
and approvals required to enable it to own, lease or otherwise hold its properties and assets and to carry on its business as now conducted,
except for those the absence of which would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse
Effect (as defined below). The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction
in which the character of the property owned or leased by it or the nature of its activities or the ownership or leasing of its properties
make such qualification necessary, except for those jurisdictions where the failure to be so qualified would not, individually or in the
aggregate, be reasonably likely to have a Company Material Adverse Effect. For purposes of this Agreement, the term “Company
Material Adverse Effect” means any state of facts, change, development, event, effect, condition or occurrence (each, an “Effect”)
that, individually or in the aggregate, results in a material adverse effect on the financial condition, business, assets or continuing
results of operations of the Company and its Subsidiaries, taken as a whole; provided, however, that in no event shall any
of the following
Effects, alone or in combination, be deemed to constitute, or be
taken into account, in determining whether there has been, or would be, a Company Material Adverse Effect: (A) any changes or conditions
in the U.S. or any other national or regional economy, any global economic changes or conditions or securities, credit, financial or other
capital markets conditions, (B) any changes or conditions affecting the oil and gas industry in general (including changes to the
prices of commodities or of the raw material inputs or value of the outputs of the Company’s products, general market prices and
regulatory changes affecting the industry), (C) any weather-related or other force majeure event or outbreak (including earthquakes,
hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters), (D) pandemics, epidemics, COVID-19 Measures,
acts of war (whether or not declared), armed hostility (by recognized governmental forces or otherwise), sabotage, terrorism or cyber-attack,
and any escalation or general worsening of any of the foregoing or other response to any governmental bodies, agencies, officials or authorities
(including requirements for business closures, restrictions on operations or “sheltering-in-place”), (E) Effects resulting
from the negotiation, execution, announcement, pendency, compliance with or performance of this Agreement, the transactions contemplated
hereby or the terms hereof or the consummation of the transactions contemplated hereby, including the impact thereof on the relationships
of the Company and its Subsidiaries with customers, suppliers, partners, employees or governmental bodies, agencies, officials or authorities;
provided that this clause (E) shall not apply to any representation or warranty set forth in Section 3.4
or Section 3.15(g) (or any condition to any party’s obligation to consummate the Merger relating to such representation
and warranty) to the extent that such representation and warranty addresses the consequences of any Effect arising out of, relating to
or resulting from the execution and delivery of this Agreement or the consummation of the Merger, (F) any action taken or failure
to take action which Parent has requested in writing or not consented to when reasonably (taking into account the reasonableness perspectives
of each of Parent and the Company) asked under Section 5.1, (G) changes in applicable law, regulation or government policy
or in GAAP or in accounting standards, or any changes in the interpretation or enforcement of any of the foregoing, or any changes in
general legal, regulatory or political conditions, including any Effects arising out of, in connection with, or as a result of, any “shut-down”
of the U.S. federal government (including its agencies), (H) any decline in the market price, or change in trading volume, of the
Company’s capital stock, (I) any failure to meet any internal or public projections, forecasts, guidance, estimates, milestones,
or budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position, (J) any
downgrade in the Company’s credit rating (it being understood that the exceptions in clauses (H), (I) and (J)
shall not prevent or otherwise affect a determination that the underlying cause of any such Effect referred to therein (if not otherwise
falling within any of the exceptions provided hereof) is a Company Material Adverse Effect) or (K) any demands, litigations or similar
actions brought by stockholders of the Company alleging breach of fiduciary duty or inadequate disclosure in connection
with this Agreement or any of the transactions contemplated hereby (it being understood and agreed that the exception in this clause
(K) shall apply to the Effects arising out of, relating to or resulting from the bringing of such litigation and not those arising
out, relating to or resulting from an actual breach or inadequate disclosure); provided that, in the case of clauses (A),
(B), (C) and (D), to the extent the impact on the Company and its Subsidiaries, taken as a whole, is disproportionately
adverse compared to the impact on similarly situated entities, the incrementally disproportionate impact or impacts shall be taken into
account in determining whether there has been, or would
reasonably be expected to be, a Company Material Adverse Effect.
The Company has heretofore made available to Parent true and complete copies of the Certificate of Incorporation of the Company, as amended
to the date of this Agreement (as so amended, the “Company Charter”), and the By-Laws of the Company, as amended to
the date of this Agreement (as so amended, the “Company By-Laws”).
Section 3.2
Corporate Authorization.
(a)
The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions
contemplated hereby are within the Company’s corporate powers and, except for any required approval by the Company’s stockholders
(the “Company Stockholder Approval”) in connection with the consummation of the Merger, have been duly authorized by
all necessary corporate action. Assuming the accuracy of the representations and warranties set forth in Section 4.17, the
affirmative vote of holders of a majority of the outstanding shares of Company Common Stock in favor of the adoption of this Agreement
is the only vote of the holders of any of the Company’s capital stock or the capital stock of any of its Subsidiaries necessary
in connection with consummation of the Merger. Assuming due authorization, execution and delivery of this Agreement by Parent and Merger
Subsidiary, this Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at
law) (collectively, “Creditors’ Rights”).
(b)
The Board of Directors of the Company, at a meeting duly called and held on or prior to the date of this Agreement, has unanimously
(i) determined that this Agreement and the transactions contemplated hereby (including the Merger) are fair to and in the best interests
of the Company’s stockholders, (ii) approved this Agreement and the transactions contemplated hereby (including the Merger),
(iii) directed that the adoption of this Agreement be submitted to a vote of the holders of Company Common Stock, and (iv) resolved
(subject to Section 5.2 and Section 7.8) to recommend the adoption of this Agreement by the holders of Company
Common Stock.
Section 3.3
Governmental Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency,
official or authority other than (a) the filing of a certificate of merger in accordance with the DGCL, (b) compliance with
any applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”),
(c) compliance with any applicable requirements of laws, rules and regulations in foreign jurisdictions governing antitrust or merger
control matters, (d) compliance with any applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder (the “Exchange Act”), (e) compliance with any applicable requirements of
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”),
(f) the appropriate filings and approvals under the rules of the New York Stock Exchange (“NYSE”), (g) (if
any) filings required to be made with the Federal Communications Commission (the “FCC”) and (h) other actions
or filings the absence or
omission of which would not, individually or in the aggregate, be
reasonably likely to have (i) a Company Material Adverse Effect or (ii) prevent or materially delay consummation by the Company of the
Merger beyond the Initial End Date (this clause (ii), a “Company Impairment Effect”).
Section 3.4
Non-Contravention. The execution, delivery and performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby do not and will not, assuming compliance with the matters referred to in Sections 3.2
and 3.3 and the accuracy of the representations and warranties set forth in Section 4.17, (a) contravene or conflict
with the Company Charter or the Company By-Laws or the organizational documents of any Subsidiaries of the Company, (b) contravene
or conflict with or constitute a violation of any provision of any law, regulation, judgment, injunction, order or decree binding upon
or applicable to the Company or any of its Subsidiaries, (c) constitute a default (or an event which with notice or the passage of
time would become a default) under, or give rise to any right of termination, cancellation or acceleration of any right or obligation
of the Company or any of its Subsidiaries or to a loss of any benefit to which the Company or any of its Subsidiaries is entitled under
any provision of, any agreement, contract or other instrument binding upon the Company or any of its Subsidiaries or any license, franchise,
permit or other similar authorization held by the Company or any of its Subsidiaries or (d) result in the creation or imposition
of any Lien (other than Permitted Liens) on any asset of the Company or any of its Subsidiaries, except for such contraventions, conflicts
or violations referred to in clause (b) or defaults, rights of termination, cancellation or acceleration or losses or Liens
referred to in clause (c) or (d) that would not, individually or in the aggregate, be reasonably likely to have
(i) a Company Material Adverse Effect or (ii) a Company Impairment Effect. For purposes of this Agreement, (x) “Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset and (y) “Permitted Lien” means (i) Liens for Taxes not yet due or being contested in good faith (and for
which adequate accruals or reserves have been established on the Parent Balance Sheet or the Company Balance Sheet, as the case may be),
(ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like lien arising in
the ordinary course of business, (iii) applicable zoning, planning, entitlement, conservation restrictions, land use restrictions, building
codes and other governmental rules and regulations imposed by a governmental authority having jurisdiction over the real property, none
of which would reasonably be expected to have an adverse impact on the Company’s or its Subsidiaries’ conduct of their respective
businesses, (iv) non-exclusive licenses to Intellectual Property granted in the ordinary course of business, (v) Liens arising in the
ordinary course of business under operating agreements, joint venture agreements, partnership agreements, oil and gas leases, farm-out
agreements, division orders, Contracts for the sale, purchase, transportation, processing or exchange of oil, gas or other Hydrocarbons,
unitization and pooling declarations and agreements, area of mutual interest agreements, development agreements, joint ownership arrangements
and other agreements that are customary in the oil and gas business (collectively, the “Permitted Arrangements”); provided
that, notwithstanding anything herein to the contrary, this clause (v) shall only apply with respect to Permitted Arrangements to the
extent, and solely to the extent, related to operations in the United States and that are not Material Contracts), (vi) any Liens discharged
at or prior to the Effective Time without any material liability to the Company or Parent or their respective Subsidiaries, (vii) any
Liens securing indebtedness under that certain Amendment and Restatement Agreement, dated as of July 14, 2022, by and among the MLP, Hess
Midstream Operations LP
(“Opco”), the other loan parties and lenders
party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent (as amended or modified from time to time, the
“MLP Credit Agreement”), (viii) Liens, exceptions, defects or irregularities in title, easements, imperfections of
title, claims, charges, security interests, rights of way, covenants, restrictions and other similar matters that (a) would be accepted
by a reasonably prudent purchaser of oil and gas interests in the geographic area where such oil and gas interests are located, and (b)
would not be reasonably expected to materially affect the value, use or operation of the property encumbered thereby (provided
that, notwithstanding anything herein to the contrary, this clause (viii) shall only apply with respect to any such Liens, exceptions,
defects or irregularities in title, easements, imperfections of title, claims, charges, security interests, rights of way, covenants,
restrictions and other similar matters to the extent, and solely to the extent, related to operations in the United States), and (ix)
Liens arising under securities laws. To the Company’s knowledge as of the date of this Agreement, there is no Effect that would
reasonably be expected to prevent, materially impede or materially interfere with the consummation by the Company of the Merger and the
Transactions.
Section 3.5
Capitalization. The authorized capital stock of the Company consists of 600,000,000 shares of Company Common Stock and 20,000,000
shares of preferred stock, par value $1.00 per share (“Company Preferred Stock”, and together with the Company Common
Stock, the “Company Capital Stock”). As of the close of business on October 19, 2023 (the “Company Measurement
Date”), there were outstanding (i) 307,158,815 shares of Company Common Stock (for the avoidance of doubt, excludes shares
of Company Common Stock held in treasury and includes 1,026,764 shares of Company Common Stock with respect to Company RS Awards), (ii) no
shares of Company Preferred Stock, (iii) no shares of Company Common Stock held in treasury and (iv) no other shares of capital stock
or other voting securities of the Company. All outstanding shares of Company Capital Stock have been duly authorized and validly issued
and are fully paid and nonassessable. As of the Company Measurement Date, there were outstanding (A) Company Options with respect
to 1,511,817 shares of Company Common Stock, (B) Company RS Awards with respect to 1,026,764 shares of Company Common Stock and (C) Company
PSU Awards with respect to (1) 511,781 shares of Company Common Stock (assuming such Company PSU Awards were earned at target level of
performance) and (2) 1,036,589 shares of Company Common Stock (assuming such Company PSU Awards were earned at maximum level of performance).
Except as set forth in this Section 3.5 and except for changes since the close of business on the Company Measurement Date
resulting from the exercise, vesting or settlement of Company Stock Options, Company RS Awards or Company PSU Awards outstanding on such
date, or the payment or redemption of other stock-based awards outstanding on such date or other securities issued as permitted by Section 5.1,
there are outstanding (x) no shares of capital stock or other voting securities of the Company and (y) (1) no options,
warrants or other rights to acquire from the Company any capital stock or voting securities of the Company or securities convertible into
or exchangeable for capital stock or voting securities of the Company, (2) no bonds, debentures, notes or other indebtedness of the
Company or any of its Subsidiaries (excluding the MLP and its Subsidiaries), in each case, that are linked to, or calculated based on,
the value of the Company or any of its Subsidiaries or otherwise based upon or derived from any dividends or other distributions declared
or paid on any shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries, or which have
or which by their terms may have at any time (whether actual or contingent) the right to vote (or which are convertible into, or exchangeable
for, securities having the right to vote) on any matters on which
stockholders of the Company or any of its Subsidiaries may vote and (3) no preemptive or similar rights, subscription or other rights,
convertible securities, or other agreements, arrangements or commitments of any character, relating to the capital stock of the Company,
obligating the Company to issue, transfer or sell any capital stock, voting securities of the Company or securities convertible into or
exchangeable for capital stock or voting securities of the Company or obligating the Company to grant, extend or enter into any such option,
warrant, subscription or other right, convertible security, agreement, arrangement or commitment (the items in the foregoing subclauses
(x) and (y) being referred to collectively as “Company Securities”). Except as permitted by Section 5.1(e)
with respect to any Company Options, Company RS Awards and Company PSU Awards, there are no outstanding obligations of the Company or
any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.
Section 3.6
Subsidiaries.
(a)
Each Subsidiary of the Company is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization,
and has all powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted,
except for those the absence of which would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse
Effect. For purposes of this Agreement, the term “Subsidiary,” when used with respect to any Person, means any other
Person, whether incorporated or unincorporated, of which (i) more than fifty percent of the voting securities or other ownership
interests is owned by such Person or one or more of its Subsidiaries, (ii) such Person or one or more of its Subsidiaries is a general
partner or holds a majority of the voting interests of a partnership or (iii) securities or other interests having by their terms
ordinary voting power to elect more than fifty percent of the board of directors or others performing similar functions with respect to
such corporation or other organization, are directly owned or controlled by such Person or by any one or more of its Subsidiaries. For
the avoidance of doubt, for all purposes of this Agreement, the MLP and its Subsidiaries shall be deemed to be Subsidiaries of the Company.
The MLP consummated the transactions contemplated by that certain Partnership Restructuring Agreement, dated as of October 3, 2019,
by and among the MLP, Opco and the other parties thereto in accordance in all material respects with the terms thereof as disclosed in
the Company SEC Documents and the MLP SEC Documents. Each Subsidiary of the Company is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the property owned or leased by it or the nature of its activities makes such qualification
necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, be reasonably
likely to have a Company Material Adverse Effect. All “significant subsidiaries” (as such term is defined in Section 1-02
of Regulation S-X under the Exchange Act) of the Company and all entities listed on Exhibit 21 to the Company 10-K (collectively,
and including for the avoidance of doubt the MLP, the “Significant Subsidiaries”) and their respective jurisdictions
of organization are identified in Section 3.6(a) of the Company Disclosure Schedules.
(b)
All of the outstanding capital stock of, or other ownership interests in, each Significant Subsidiary of the Company (other than
the MLP and its Subsidiaries) is wholly-owned by the Company, directly or indirectly, free and clear of any material Lien (other than
Liens arising under securities laws) and free of any other material limitation or restriction
(including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership interests). There are no outstanding (i) securities of the Company or any of its
Significant Subsidiaries (other than the MLP and its Subsidiaries) convertible into or exchangeable for shares of capital stock or other
voting securities or ownership interests in any Significant Subsidiary of the Company (other than the MLP and its Subsidiaries) or (ii) (A) options,
warrants or other rights to acquire from the Company or any of its Significant Subsidiaries (other than the MLP and its Subsidiaries)
any capital stock, voting securities or other ownership interests in, or any securities convertible into or exchangeable for any capital
stock, voting securities or ownership interests in, any Significant Subsidiary of the Company (other than the MLP and its Subsidiaries),
(B) bonds, debentures, notes or other indebtedness of any Significant Subsidiary of the Company (other than the MLP and its Subsidiaries)
that are linked to, or calculated based on, the value of the Company or any of its Subsidiaries or otherwise based upon or derived from
any dividends or other distributions declared or paid on any shares of capital stock of, or other equity or voting interests in, the Company
or any of its Subsidiaries (other than the MLP and its Subsidiaries), or which have or which by their terms may have at any time (whether
actual or contingent) the right to vote (or which are convertible into, or exchangeable for, securities having the right to vote) on any
matters on which stockholders of the Company or any of its Subsidiaries (other than the MLP and its Subsidiaries) may vote or (C) preemptive
or similar rights, subscription or other rights, convertible securities, agreements, arrangements or commitments of any character relating
to the capital stock of any Significant Subsidiary of the Company (other than the MLP and its Subsidiaries), obligating the Company or
any of its Significant Subsidiaries (other than the MLP and its Subsidiaries) to issue, transfer or sell any capital stock, voting securities
or other ownership interests in, or any securities convertible into or exchangeable for any capital stock, voting securities or ownership
interests in, any Significant Subsidiary of the Company (other than the MLP and its Subsidiaries) or obligating the Company or any Significant
Subsidiary of the Company (other than the MLP and its Subsidiaries) to grant, extend or enter into any such option, warrant, subscription
or other right, convertible security, agreement, arrangement or commitment (the items in the foregoing subclauses (i) and (ii) being
referred to collectively as “Company Subsidiary Securities”). There are no outstanding obligations of the Company or
any of its Subsidiaries (other than the MLP and its Subsidiaries) to repurchase, redeem or otherwise acquire any outstanding Company Subsidiary
Securities. Other than the MLP, no Subsidiary of the Company is, or since January 1, 2021 has been, subject to any requirement to
file periodic reports under the Exchange Act. No Subsidiary of the Company owns any shares of Company Common Stock.
(c)
As of the Company Measurement Date, the issued and outstanding limited partner interests and general partner interests of (i) the
MLP consisted solely of (A) 68,358,493 “Class A Shares” (as defined in the Amended and Restated Agreement of Limited
Partnership dated as of December 16, 2019 of the MLP (the “MLP Partnership Agreement”)) (the “MLP Class A
Shares”), of which 898,000 are held by Hess Midstream GP LP (the “GP”) (B) 161,311,848 “Class
B Shares” (as defined in the MLP Partnership Agreement) (the “MLP Class B Shares”), of which 149,811,848 are
held by the GP and 11,500,000 are held by Hess Investments North Dakota LLC (“HINDL”), and (C) a 0.0% non-economic
general partner interest held by the GP (the “Hess GP Interest”); and (ii) the Opco consisted solely of (A) 68,358,493
“Class A Units” (as defined in the Third Amended and Restated Agreement of Limited Partnership of OpCo (the “Opco
Partnership Agreement”) (the “Opco Class A Units”), all of which were held by the MLP, (B) 161,311,848 “Class
B Units” (as defined in the Opco
Partnership Agreement) (the “Opco Class B Units”),
of which 86,405,924 were held by HINDL, and (C) incentive distribution right and “General Partner Interest” (as defined in
the Opco Partnership Agreement), all of which are held by Hess Midstream Partners GP LP. All of the issued and outstanding MLP Class A
Shares, MLP Class B Shares, Opco Class A Units and Opco Class B Units have been duly authorized and validly issued and are fully paid
(to the extent required by the MLP Partnership Agreement or Opco Partnership Agreement, as applicable) and nonassessable (except as such
non-assessability may be affected by Sections 17-303(a), 17-607 and 17-804 of the Delaware
Revised Uniform Limited Partnership Act) and, except as set forth in the MLP Partnership Agreement or Opco Partnership Agreement,
as applicable, free of preemptive rights. As of the Company Measurement Date, each of HINDL and Affiliate(s) of Global Infrastructure
Partners are the record and beneficial owners of 50% of the limited liability company interests of Hess Infrastructure Partners GP LLC,
which entity owns 100% of the limited partnership interests of the GP and 100% of the limited liability company interests of Hess Midstream
GP LLC, which entity is the sole general partner of the GP. The GP is the sole general partner of the MLP. The Hess GP Interest has been
duly authorized and validly issued in accordance with applicable law and the MLP Partnership Agreement. The GP owns the Hess GP Interest
and its Class A Shares and Class B Shares free and clear of any Liens (other than Liens arising under securities laws). HINDL owns its
Class B Units free and clear of any Liens (other than Liens arising under securities laws). Except (x) as set forth above in this
Section 3.6(c), (y) for the Phantom Units (as defined in the Hess Midstream LP 2017 Long-Term Incentive Plan) or (z) as
otherwise expressly permitted by this Agreement, as of the Company Measurement Date, there are no outstanding, (A) “Shares”
(as defined in the MLP Partnership Agreement) or other equity or voting securities or ownership interests of the MLP (the “MLP
Partnership Interests”), (B) “Units” (as defined in the Opco Partnership Agreement) or other equity or voting securities
or ownership interests of the Opco (the “Opco Partnership Interests”, together with the MLP Partnership Interests,
the “Partnership Interests”), (C) (1) options, warrants or other rights to acquire from the MLP or Opco any Partnership
Interests, equity or voting securities or other ownership interests in, or any securities convertible into or exchangeable for Partnership
Interests, voting securities or ownership interests in, the MLP or the Opco or (2) preemptive or similar rights, subscription or
other rights, convertible securities, or other agreements, arrangements or commitments of any character relating to Partnership Interests
or other equity or voting securities or other ownership interests of the MLP or the Opco, obligating the MLP or the Opco to issue, transfer
or sell any Partnership Interests or any securities convertible into or exchangeable for Partnership Interests, or obligating the MLP
or the Opco to grant, extend or enter into any such option, warrant, subscription or other right, convertible security, or other agreement,
arrangement or commitment or (D) bonds, debentures, notes or other debt of the MLP or the Opco that are linked to, or the value of
which is in any way based upon or derived from, the value of the MLP or the Opco or any part thereof, or any dividends or other distributions
declared or paid on any Partnership Interests, capital stock of, or other equity or voting interests in, the MLP or the Opco, or which
have or which by their terms may have at any time (whether actual or contingent) the right to vote (or which are convertible into, or
exchangeable for, securities having the right to vote) on any matters on which unitholders of the MLP or the Opco may vote (the items
in the foregoing subclauses (A), (B), (C) and (D) being referred to collectively as “MLP/Opco
Securities”). Except as required by the terms of the MLP Partnership Agreement or the Opco Partnership Agreement in effect as
of the date hereof or amended as to the extent permitted by Section 5.1, there are no outstanding
obligations of the MLP or the Opco, as applicable, or any of their
Subsidiaries to repurchase, redeem or otherwise acquire any MLP/Opco Securities. Each Subsidiary of Opco is wholly-owned by OpCo. The
Company has heretofore made available to Parent true and complete copies of the Certificates of Limited Partnership of the MLP and the
OpCo, the MLP Partnership Agreement and the Opco Partnership Agreement, in each case as amended to the date of this Agreement.
Section 3.7
SEC Filings.
(a)
The Company has made available to Parent (i) its annual reports on Form 10-K for its fiscal years ended December 31,
2021 and 2022, (ii) its proxy or information statements relating to meetings of, or actions taken without a meeting by, the stockholders
of the Company held since December 31, 2021 and (iii) all of its other reports, statements, schedules and registration statements
filed with the SEC since December 31, 2021 (the documents referred to in this Section 3.7(a) being referred to collectively
as the “Company SEC Documents”). The Company’s annual report on Form 10-K for its fiscal year ended December 31,
2022 is referred to herein as the “Company 10-K.” The Company’s quarterly report on Form 10-Q for the fiscal
quarter ended June 30, 2023 is referred to herein as the “Company 10-Q.”
(b)
The Company has made available to Parent (i) the annual reports on Form 10-K for the MLP for the fiscal years ended December 31,
2021 and 2022, (ii) the proxy or information statements relating to meetings of, or actions taken without a meeting by, the unitholders
of the MLP held since December 31, 2021 and (iii) all of the other reports, statements, schedules and registration statements
filed by the MLP with the SEC since December 31, 2021 (the documents referred to in this Section 3.7(b) being referred
to collectively as the “MLP SEC Documents”). The MLP’s annual report on Form 10-K for its fiscal year ended December 31,
2022 is referred to herein as the “MLP 10-K.” The MLP’s quarterly report on Form 10-Q for the fiscal quarter
ended June 30, 2023 is referred to herein as the “MLP 10-Q.”
(c)
As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such filing),
each Company SEC Document and MLP SEC Document complied as to form in all material respects with the applicable requirements of the Exchange
Act, the Securities Act and the Sarbanes-Oxley Act and the rules and regulations thereunder.
(d)
As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such filing),
each Company SEC Document and MLP SEC Document filed pursuant to the Exchange Act did not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which
they were made, not misleading.
(e)
Each registration statement, as amended or supplemented, if applicable, filed by the Company or the MLP since January 1, 2021,
pursuant to the Securities Act, as of the date such statement or amendment became effective, did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(f)
Each of the Company and the MLP has timely filed with or furnished to the SEC all forms, reports, schedules, registration statements,
proxy statements and other documents required to be filed with or furnished to the SEC by the Company or the MLP, as applicable, since
January 1, 2021.
Section 3.8
Financial Statements. The audited consolidated financial statements of the Company and the MLP (including any related notes
and schedules) included in their respective annual reports on Form 10-K referred to in Section 3.7 present fairly, in all
material respects, the consolidated financial position of the Company and its consolidated Subsidiaries and the MLP and its consolidated
Subsidiaries, respectively, as of the dates thereof and the consolidated results of their operations and their cash flows for the periods
then ended, in each case, in conformity with United States generally accepted accounting principles (“GAAP”) applied
on a consistent basis (except as may be indicated in the notes thereto). For purposes of this Agreement, “Company Balance Sheet”
means the consolidated balance sheet of the Company, as of June 30, 2023, set forth in the Company 10-Q and “Company Balance
Sheet Date” means June 30, 2023. For purposes of this Agreement, “MLP Balance Sheet” means the consolidated
balance sheet of the MLP, as of June 30, 2023, set forth in the MLP 10-Q.
Section 3.9
Disclosure Documents.
(a)
Neither the proxy statement of the Company (the “Company Proxy Statement”) to be filed with the SEC in connection
with the Merger, nor any amendment or supplement thereto, will, at the date the Company Proxy Statement or any such amendment or supplement
thereto is first mailed to stockholders of the Company or at the time such stockholders vote on the adoption and approval of this Agreement
and the transactions contemplated hereby, contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading. The Company Proxy Statement, including all amendments or supplements thereto, will, when filed, comply as to form in all material
respects with the requirements of the Exchange Act. Notwithstanding the foregoing, no representation or warranty is made by the Company
in this Section 3.9 with respect to statements made or incorporated by reference therein based on information supplied by
Parent or Merger Subsidiary for inclusion or incorporation by reference in the Company Proxy Statement.
(b)
None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Form S-4
(as defined in Section 4.8(a)) or any amendment or supplement thereto will, at the time the Form S-4 or any such
amendment or supplement becomes effective under the Securities Act or at the Effective Time, as the case may be, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section 3.10
Controls and Procedures.
(a)
Each of the principal executive officer and the principal financial officer of the Company and the MLP, as applicable (or each
former principal executive officer and former principal financial officer of the Company and the MLP, as applicable) has made all
certifications required under Sections 302 and 906 of the Sarbanes-Oxley
Act of 2002 and the related rules and regulations promulgated thereunder and under the Exchange Act (collectively, the “Sarbanes-Oxley
Act”) with respect to Company SEC Documents and the MLP SEC Documents, as applicable. For purposes of the preceding sentence,
“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in
the Sarbanes-Oxley Act.
(b)
Each of the Company and the MLP has (i) designed and maintained disclosure controls and procedures (as defined in Rule 13a-15(e)
under the Exchange Act) to ensure that material information required to be disclosed by the Company and the MLP, as applicable, in the
reports it files or furnishes under the Exchange Act is communicated to its management by others within those entities as appropriate
to allow timely decisions regarding required disclosure, (ii) disclosed, based on its most recent evaluation, to its auditors and
the audit committee of its Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation
of internal controls over financial reporting which could adversely affect its ability to record, process, summarize and report financial
data and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in its internal
controls over financial reporting and (iii) identified for the Company’s or the MLP’s, as applicable, auditors any material
weaknesses in internal controls over financial reporting (any such disclosures referred to in clauses (ii) or (iii), the “Section
3.10(b) Disclosures”). The Company has provided to Parent true and correct copies of any Section 3.10(b) Disclosures to the
auditors or audit committee of the Company and of the MLP that have been made in writing from January 1, 2021 through the date of
this Agreement.
(c)
The Company has designed and maintains a system of internal controls over financial reporting (as defined in Rule 13a-15(f) under
the Exchange Act) sufficient to provide reasonable assurance concerning the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP, including reasonable assurance (i) that transactions are executed
in accordance with management’s general or specific authorizations and recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability and (ii) regarding prevention or timely detection of any
unauthorized acquisition, use or disposition of assets that could have a material effect on the Company’s financial statements or
the MLP’s financial statements. The Company’s management and the MLP’s management (as applicable), with the participation
of the Company’s (or the MLP’s, as applicable) principal executive and financial officers, has completed an assessment of
the effectiveness of the Company’s or the MLP’s, as applicable, internal controls over financial reporting in compliance with
the requirements of Section 404 of the Sarbanes-Oxley Act for the year ended December 31, 2022, and such assessment concluded
that such internal controls were effective using the framework specified in the Company 10-K or the MLP 10-K, as applicable.
(d)
No personal loan or other extension of credit by the Company or any Subsidiary to any of its or their executive officers or directors
has been made or modified in violation of Section 13 of the Exchange Act and Section 402 of the Sarbanes-Oxley Act since January 1,
2021.
(e)
Since January 1, 2021, neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any director,
officer, employee, auditor, accountant or representative of the Company or any of its Subsidiaries has received any written complaint,
allegation, assertion, or claim that the Company or any of its Subsidiaries has engaged in improper or illegal accounting or auditing
practices or maintains improper or inadequate internal accounting controls. For purposes of this Agreement, “knowledge”
means, with respect to the Company or Parent, the actual knowledge of any individual identified as an executive officer of such party
in the Form 10-K filed most recently by such party with the SEC.
Section 3.11
Absence of Certain Changes.
(a)
From the Company Balance Sheet Date to the date of this Agreement, the Company and its Subsidiaries have conducted their business
in the ordinary course of business consistent with past practice in all material respects.
(b)
From the Company Balance Sheet Date, there has not been any event, occurrence, change or development of a state of circumstances
or facts which, individually or in the aggregate, has had, or would be reasonably likely to have, a Company Material Adverse Effect.
Section 3.12
No Undisclosed Material Liabilities. As of the date of this Agreement, there are no liabilities of the Company or any Subsidiary
of the Company of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, that are, individually
or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, other than:
(a)
liabilities disclosed or provided for in the Company Balance Sheet, the MLP Balance Sheet or the notes thereto;
(b)
liabilities incurred since the Company Balance Sheet Date in the ordinary course of business consistent with past practice and
which, individually or in the aggregate, would not be reasonably likely to have a Company Material Adverse Effect;
(c)
liabilities disclosed in the Company SEC Documents or the MLP SEC Documents filed prior to the date of this Agreement;
(d)
liabilities or obligations that have been discharged or paid in full in the ordinary course of business consistent with past practice;
and
(e)
liabilities under this Agreement or in connection with the Transactions.
Section 3.13
Litigation. As of the date of this Agreement, there is no action, arbitration, mediation, suit, litigation, audit, hearing,
investigation or proceeding pending against or affecting, or, to the knowledge of the Company, threatened against or affecting, the Company,
any of its Subsidiaries, any of their respective assets or properties or any of their respective officers or directors before any court,
arbitrator or any governmental body, agency, authority or
official (whether local, state, federal or foreign) which would,
individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect.
Section 3.14
Taxes. Except as set forth in the Company Balance Sheet or the MLP Balance Sheet (in each case including the notes thereto)
and except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect:
(a)
(i) all Tax Returns required to be filed with any taxing authority by, or with respect to, the Company and its Subsidiaries
have been filed in accordance with all applicable laws; (ii) the Company and its Subsidiaries have timely paid, or caused to be paid,
all Taxes shown as due and payable on the Tax Returns that have been so filed, and, as of the time of filing, such Tax Returns were true
and complete in all respects (other than, in the case of clause (i) or clause (ii) hereof, with respect to
Taxes and Tax Returns for which the position has been taken in good faith and for which adequate reserves are reflected on the Company
Balance Sheet or the MLP Balance Sheet, as applicable, as adjusted for operations in the ordinary course of business consistent with past
practice since the date of the Company Balance Sheet or the MLP Balance Sheet, as applicable); and (iii) the Company and its Subsidiaries
have made provision for all Taxes payable by the Company and its Subsidiaries for which no Tax Return has yet been filed;
(b)
there is no action, suit, proceeding, audit or claim in respect of any Tax or Tax Return (each, a “Tax Proceeding”)
now proposed in writing or pending against or with respect to the Company or any of its Subsidiaries;
(c)
to the knowledge of the Company, neither the Company nor any of its Subsidiaries is liable for any Tax imposed on any Person (other
than the Company or any of its Subsidiaries) as the result of the application of Treasury Regulations section 1.1502-6 (and any comparable
provision of the Tax laws of any state, local or foreign jurisdiction) or as a transferee or successor;
(d)
neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled
corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying or intended to
qualify for tax-free treatment, in whole or in part, under Section 355 or Section 361(a) of the Code in the two years prior
to the date of this Agreement;
(e)
neither the Company nor any of its Subsidiaries has granted any currently effective requests, agreements, consents or waivers to
extend the statutory period of limitations applicable to the assessment or collection of any Taxes with respect to any Tax Returns of
the Company or any of its Subsidiaries;
(f)
neither the Company nor any of its Subsidiaries is a party to any closing agreement described in Section 7121 of the Code
or any predecessor provision thereof or any similar agreement under the Tax laws of any state, local or foreign jurisdiction, in each
case, which agreement would be binding on the Company or such Subsidiary after the Closing;
(g)
neither the Company nor any of its Subsidiaries is a party to, is bound by or has any obligation under, any Tax sharing, allocation
or indemnity agreement or any similar agreement or arrangement, except for (i) any such agreement or arrangement solely between or
among any of the Company and/or its Subsidiaries or (ii) any commercial agreement entered into in the ordinary course of business
the primary purpose of which does not relate to Taxes;
(h)
neither the Company nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of
Treasury Regulations section 1.6011-4(b)(2);
(i)
there are no Liens for Taxes other than Taxes not yet due or being contested in good faith (and for which adequate accruals or
reserves have been established on the Company Balance Sheet) upon any of the assets of the Company or any of its Subsidiaries; and
(j)
no written claim has been made in the last three years by an authority in a jurisdiction in which the Company or any of its Subsidiaries
does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation in that jurisdiction.
For purposes of this Agreement, “Taxes” shall
mean any and all taxes, charges, fees, levies or other assessments, including, without limitation, all net income, gross income, gross
receipts, excise, stamp, real or personal property, ad valorem, withholding, social security (or similar), unemployment, occupation,
use, production, service, service use, license, net worth, payroll, franchise, severance, transfer, recording, employment, premium, windfall
profits, environmental, customs duties, capital stock, profits, disability, sales, registration, value added, alternative or add-on minimum,
estimated or other taxes, assessments or charges in the nature of a tax imposed by any federal, state, local or foreign governmental body,
agency, authority or entity and any interest, penalties or additions to tax attributable thereto. For purposes of this Agreement, “Tax
Returns” shall mean any return, report, form or similar statement filed or required to be filed with respect to any Tax (including
any attached schedules), including, without limitation, any information return, claim for refund, amended return or declaration of estimated
Tax.
Section 3.15
Employee Benefit Plans; Employment.
(a)
The Company has provided Parent with a list (set forth in Section 3.15(a) of the Company Disclosure Schedules) identifying
each material “employee benefit plan,” as defined in section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), each material employment, consulting, severance, change in control or similar contract, plan,
funding arrangement or policy applicable to any director, former director, employee or former employee of the Company or any of its Subsidiaries,
and each material plan, funding vehicle or arrangement (written or oral), providing for compensation, bonuses, profit-sharing, stock option
or other stock-related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any
self-insured arrangements), health or medical benefits, death benefits, disability benefits, workers’ compensation, supplemental
unemployment benefits, severance benefits, change in control benefits and post-employment or retirement benefits (including compensation,
pension, health, medical or life insurance benefits) which is maintained, administered or contributed to by the
Company or its Subsidiaries and covers any employee or director
or former employee or director of the Company or any of its Subsidiaries and any material amendment thereto; provided, however,
that such list need not include any Company Benefit Plan that constitutes a Foreign Company Benefit Plan (as defined below); provided,
further, that such list shall be updated within thirty (30) Business Days following the date hereof to include any material Company
Benefit Plan that constitutes a Foreign Company Benefit Plan. The plans, agreements or arrangements of the Company and its Subsidiaries
referred to in the first sentence of this Section 3.15(a) (excluding any such plan that is a “multiemployer plan,”
as defined in section 3(37) of ERISA or any contract, plan, funding arrangement or policy that is sponsored, maintained or administered
by any governmental body, agency, authority or entity) are referred to collectively herein as the “Company Benefit Plans.”
“Foreign Company Benefit Plan” means any Company Benefit Plan primarily maintained for the benefit of employees and
former employees in jurisdictions other than the United States (excluding any statutory benefits under applicable Law).
(b)
The Company has made available to Parent true, complete and correct copies of (i) each Company Benefit Plan (or, in the case
of any unwritten Company Benefit Plan, a description thereof) and any amendments thereto (other than any Foreign Company Benefit Plan),
(ii) the most recent annual report on Form 5500 thereto (including any related actuarial valuation report) filed with the Internal
Revenue Service with respect to each Company Benefit Plan (if any such report was required) and (iii) the most recent summary plan
description for each Company Benefit Plan for which such summary plan description is required. The Company shall have made available to
Parent no later than thirty (30) Business Days following the date hereof true, complete and correct copies of each Foreign Company Benefit
Plan (or, in the case of any unwritten Foreign Company Benefit Plan, a description thereof) and any amendments thereto.
(c)
Each Company Benefit Plan has been established and maintained in material compliance with its terms and with the requirements prescribed
by any and all statutes, orders, rules and regulations (including, but not limited to, the extent applicable, ERISA and the Code) which
are applicable to such plan.
(d)
(i) Neither the Company nor any other entity which is a member of a controlled group of entities (within the meaning of Sections 414(b),
(c), (m) or (o) of the Code) of which the Company is a member (each, an “ERISA Affiliate”) has incurred a material
liability under Title IV of ERISA or Section 412 of the Code that has not been satisfied in full, and no reasonably foreseeable condition
exists that presents a material risk to the Company or any ERISA Affiliate of incurring any such liability; and (ii) all material
insurance premiums with respect to Company Benefit Plans, including premiums to the Pension Benefit Guaranty Corporation, have been paid
when due.
(e)
All “employee pension benefit plans” (as defined in Section 3(2) of ERISA) that are Company Benefit Plans (“Company
Pension Plan”) intended to be qualified under Section 401(a) of the Code have received a favorable determination letter
or opinion letter, if applicable, from the Internal Revenue Service to the effect that such Company Pension Plans are qualified and exempt
from federal income Taxes under Sections 401(a) and 501(a),
respectively, of the Code. Neither the Company nor any of its ERISA
Affiliates contributes to a “multiemployer plan,” as defined in Section 3(37) of ERISA.
(f)
No Company Benefit Plan provides for retiree health benefits or retiree life benefits (other than such benefits required by Section 4980B
of the Code or Section 601 of ERISA or similar state law).
(g)
The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event,
except as expressly provided in this Agreement, (i) entitle any current or former employee, individual independent contractor, director
or officer of the Company or any of its Subsidiaries to severance pay, unemployment compensation or any other payment or (ii) accelerate
the time of payment or vesting, increase the amount of compensation due any such employee, individual independent contractor, director
or officer or trigger any other material obligation pursuant to any Company Benefit Plan, (iii) require any funding (through a grantor
trust or otherwise) of any compensation or benefit owed to any such current or former employee, individual independent contractor, director
or officer, or (iv) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual”
(within the meaning of Section 280G of the Code) that would reasonably be expected to, individually or in combination with any other
such payment, constitute an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code).
(h)
Except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, the Company
and its Subsidiaries are in compliance with all applicable federal, state and local laws, rules and regulations respecting employment,
employment practices, labor, occupational safety and health, and wages and hours, including Section 8 of the National Labor Relations
Act and all civil rights and anti-discrimination laws, rules and regulations (collectively, “Anti-Discrimination Laws”).
Except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, no work stoppage,
slowdown or labor strike against the Company or any of its Subsidiaries is pending or, to the Company’s knowledge, threatened, nor
is the Company or any of its Subsidiaries involved in or, to the Company’s knowledge, threatened with material labor disputes, grievances
or litigation relating to labor matters, including with respect to Anti-Discrimination Laws.
(i)
As of the date of this Agreement, neither the Company nor any Subsidiary is a party to or bound by any collective bargaining agreement
or other agreement with any labor organization, works council, trade union, labor association or other employee representative and no
such agreement is being negotiated by the Company or any of its Subsidiaries.
(j)
Since January 1, 2021, to the knowledge of the Company, (i), no allegations of sexual harassment or other sexual misconduct
or race discrimination have been made by any current or former employee or independent contractor of the Company or any of its Subsidiaries
against any employee of the Company or its Subsidiaries with the title of senior vice president or above through any formal human resources
communication channels at the Company (including an anonymous employee hotline, if any), (ii) there are no actions, suits,
investigations or proceedings pending or, to the Company’s
knowledge, threatened related to any allegations made by any current or former employee or independent contractor of the Company or any
of its Subsidiaries of sexual harassment or other sexual misconduct or race discrimination against any employee of the Company or its
Subsidiaries with the title of senior vice president or above and (iii) neither the Company nor any of its Subsidiaries have entered
into any settlement agreements related to allegations of sexual harassment or other sexual misconduct or race discrimination made by any
current or former employee or independent contractor of the Company or any of its Subsidiaries against any employee of the Company with
the title of senior vice president or above.
(k)
No Company Benefit Plan provides a gross-up for any Taxes which may be imposed (i) for failure to comply with the requirements
of Section 409A of the Code or (ii) under Section 4999 of the Code.
Section 3.16
Compliance with Laws. To the Company’s knowledge, neither the Company nor any of its Subsidiaries is in violation
of, or has since January 1, 2021, violated, any applicable provisions of any laws, statutes, ordinances or regulations except for
any violations that, individually or in the aggregate, have not had, and would not be reasonably likely to have, a Company Material Adverse
Effect.
Section 3.17
Regulatory Matters.
(a)
Except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, since January 1,
2018, (i) none of the Company, any of its Subsidiaries, nor any Company or Subsidiary director, officer, employee, nor, to the knowledge
of the Company, any representative, agent, or other person acting on behalf of the Company or any of its Subsidiaries, has violated any
Anti-Corruption Law, and (ii) none of the Company, any of its Subsidiaries nor any Company or Subsidiary director, officer, employee,
nor, to the knowledge of the Company, any representative, agent or any other person acting on behalf of the Company or any of its Subsidiaries,
has offered, paid, given, promised, or authorized the payment of, anything of value (including, but not limited to, money, checks, wire
transfers, tangible and intangible gifts, favors, services, employment or entertainment and travel) directly or indirectly to any employee,
officer, or representative of, or any person otherwise acting in an official capacity for or on behalf of a governmental body, agency,
authority or entity, whether elected or appointed, including an officer or employee of a state-owned or state-controlled enterprise, a
political party, political party official or employee, candidate for public office, or an officer or employee of a public international
organization (such as the World Bank, United Nations, International Monetary Fund, or Organization for Economic Cooperation and Development)
(any such person, a “Government Official”) (A) for the purpose of (1) influencing any act or decision of
a Government Official or any other person in his or her official capacity, (2) inducing a Government Official or any other person
to do or omit to do any act in violation of his or her lawful duties, (3) securing any improper advantage, (4) inducing a Government
Official or any other person to influence or affect any act or decision of any governmental body, agency, authority or entity or (5) assisting
the Company, any Subsidiary of the Company, or any Company or Subsidiary director, officer employee, agent, representative, or any other
person acting on behalf of the Company or any of its Subsidiaries in obtaining or retaining business, or (B) in a manner which would
constitute or have the purpose or effect of
public or commercial bribery or corruption, acceptance of, or acquiescence
in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business or any improper advantage.
(b)
Except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, (i) the
Company, each of its Subsidiaries and their respective directors, officers, employees, and, to the knowledge of the Company, agents, representatives
and other persons acting for or on behalf of any of the foregoing persons, are, and at all times since January 1, 2018 have been,
in compliance with all applicable Economic Sanctions/Trade Laws and all applicable Money Laundering Laws and (ii) neither the Company
nor any of its Subsidiaries carries on, or has carried on since January 1, 2018, any business, directly or knowingly indirectly,
involving Cuba, Iran, Syria, North Korea, the Crimea region, or the so-called Donetsk or Luhansk People’s Republics or any Sanctions
Target in violation of applicable Economic Sanctions/Trade Laws.
(c)
Except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, since January 1,
2018 (i) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation, review or audit,
or made a voluntary, directed, or involuntary disclosure to any governmental body, agency, authority or entity or third party with respect
to any alleged or suspected act or omission arising under or relating to any potential noncompliance with any applicable Anti-Corruption
Law, Economic Sanctions/Trade Law, or Money Laundering Law, (ii) neither the Company nor any of its Subsidiaries, nor any of their
respective directors or officers, nor, to the knowledge of the Company, any agents, employees (other than officers) representatives, or
any other person acting at the direction of the Company or any of its Subsidiaries has received any written notice, request or citation
for any actual or potential noncompliance with any applicable Anti-Corruption Law, Economic Sanctions/Trade Law or Money Laundering Law,
(iii) the Company and its Subsidiaries have implemented and have maintained internal controls, policies and procedures designed to
detect and prevent violations of Anti-Corruption Laws, Economic Sanctions/Trade Laws and Money Laundering Laws, and (iv) the Company
and each of its Subsidiaries have at all times made and maintained accurate books and records in material compliance with all applicable
Anti-Corruption Laws, Economic Sanctions/Trade Laws or Money Laundering Laws.
(d)
For purposes of this Agreement:
(i)
“Anti-Corruption Laws” means any applicable law for the prevention or punishment of public or commercial corruption
or bribery, including the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and any other applicable anti-corruption or anti-bribery
law of any other applicable jurisdiction.
(ii)
“Economic Sanctions/Trade Laws” means all applicable laws relating to anti-terrorism, the importation of goods,
export controls, antiboycott, and Sanctions Targets, including prohibited or
restricted international trade and financial transactions
and lists maintained by any governmental body, agency, authority or entity targeting countries, territories, entities or persons, including
the United States, Canada, the United Nations Security Council, the European Union, any European Union member state, or Her Majesty’s
Treasury of the United Kingdom. For the avoidance of doubt, the applicable laws referenced in the foregoing sentence include (1) any
of the Trading With the Enemy Act, the International Emergency Economic Powers Act, the United Nations Participation Act, or the Syria
Accountability and Lebanese Sovereignty Act, or any regulations of the U.S. Treasury Department Office of Foreign Assets Controls (“OFAC”),
or any export control law applicable to U.S.-origin goods, technology, or software, or any enabling legislation or executive order relating
to any of the above, as collectively interpreted and applied by the U.S. Government at the prevailing point in time, (2) any U.S.
sanctions related to or administered by the U.S. Department of State and (3) any sanctions measures or embargoes imposed by the United
Nations Security Council, Her Majesty’s Treasury or the European Union.
(iii)
“Money Laundering Laws” means any law or regulation governing financial recordkeeping and reporting requirements,
including the U.S. Currency and Foreign Transaction Reporting Act of 1970, the U.S. Money Laundering Control Act of 1986, the USA PATRIOT
Act of 2011, and any applicable money laundering-related laws of other jurisdictions where the Company and its Subsidiaries conduct business,
conduct financial transactions or own assets.
(iv)
“Sanctions Target” means: (1) any country or territory that is the target of country-wide or territory-wide
Economic Sanctions/Trade Laws, which, as of the date of this Agreement, are Iran, Cuba, Syria, North Korea, the Crimea region or the so-called
Donetsk or Luhansk People’s Republics; (2) a person that is on the list of Specially Designated Nationals and Blocked Persons
or any of the other sanctioned persons lists published by OFAC, or any equivalent list of sanctioned persons issued by the U.S. Department
of State; (3) a person that is located or resident in or organized under the laws of a country or territory that is identified as
the subject of country-wide or territory-wide Economic Sanctions/Trade Laws; or (4) an entity owned fifty percent (50%) or more or,
where relevant under applicable Economic Sanctions/Trade Laws, controlled
by, a country or territory identified in clause (1)
or person in clause (2) above.
Section 3.18
Environmental Matters.
(a)
Except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, (i) no
written notice, notification, demand, request for information, citation, summons, complaint or order has been received by, and no investigation,
action, claim, suit, proceeding or review is pending or, to the knowledge of the Company, threatened by any Person against the Company
or any of its Subsidiaries, and no penalty has been assessed or outstanding consent decree or order issued by a court, governmental body,
agency, authority or tribunal against the Company or any of its Subsidiaries, in each case, with respect to any matters arising out of
any Environmental Law; (ii) the Company and its Subsidiaries are, and since January 1, 2021 have been, in compliance with all
Environmental Laws; (iii) (x) the Company and each of its Subsidiaries have obtained and have been and are in compliance with
all permits, licenses, certifications, variations, exemptions, orders, franchises and approvals of all governmental bodies, agencies and
authorities required under Environmental Laws for the conduct of their respective businesses as currently conducted (the “Company
Environmental Permits”) and (y) all Company Environmental Permits are in full force and effect, and the Company has no
written notice or knowledge that such Company Environmental Permits will not be renewed in the ordinary course after the Effective Time;
(iv) no governmental body, agency or authority has begun, or to the knowledge of the Company, threatened in writing to begin, any
action to terminate, cancel or reform any Company Environmental Permit; (v) to the knowledge of the Company, there are no Hazardous
Substances at, in, under or migrating to or from (x) properties owned or leased by the Company or any Subsidiary that require investigation,
control, monitoring, removal or remediation under Environmental Laws or (y) any other properties that require investigation, control,
monitoring, removal or remediation by the Company or any of its Subsidiaries under Environmental Laws; and (vi) there has been no
material environmental investigation, study, audit, test, review or other analysis conducted since January 1, 2021 of which the Company
has knowledge in relation to any current or prior business of the Company or any of its Subsidiaries or any property or facility now or
previously owned, leased or operated by the Company or any of its Subsidiaries which has not been made available to Parent prior to the
date of this Agreement, excluding routine environmental monitoring conducted by the Company in the ordinary course of operations. Except
with respect to Section 3.7(d), Section 3.8, Section 3.9, Section 3.11, Section 3.12
and Section 3.21, this Section 3.18 contains the sole and exclusive representations and warranties of the Company
with respect to environmental matters, including with respect to Hazardous Substances, Company Environmental Permits, and any other matter
relating to compliance with, or liabilities under, Environmental Laws.
(b)
For purposes of this Section 3.18, the term “Environmental Laws” means federal, state, provincial,
local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments,
orders, codes, injunctions, permits, governmental agreements or governmental restrictions relating to: (A) the protection, investigation
or restoration of the environment or natural resources, (B) the handling, use, storage, presence, disposal, transport, Release or
threatened Release of any Hazardous Substance or (C) noise, odor, indoor air, employee exposure, electromagnetic fields, wetlands,
pollution, contamination or any injury or threat of injury to persons
or property relating to any Hazardous Substance. As used herein, the term “Hazardous Substance” means any “hazardous
substance” and any “pollutant or contaminant” as those terms are defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (“CERCLA”); any “hazardous waste” as that term is defined
in the Resource Conservation and Recovery Act (“RCRA”); and any “hazardous material” as that term is defined
in the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), as amended (including as those terms are
further defined, construed, or otherwise used in rules, regulations, standards, orders, guidelines, directives, and publications issued
pursuant to, or otherwise in implementation of, said laws); and including, without limitation, any other substance defined, listed, classified
or regulated as “hazardous”, “toxic”, a “waste”, a “pollutant”, or a “contaminant,”
including petroleum product or byproduct, per- or polyfluorinated alkyl substances, explosive material, radioactive material, asbestos,
lead paint, polychlorinated biphenyls (or PCBs), dioxins, dibenzofurans, heavy metals, radon gas, mold, mold spores, and mycotoxins. As
used herein, the term “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, placing, discarding, abandonment, or disposing into the environment.
Section 3.19
Title to Properties. Except in each case as would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, each of the Company and its Subsidiaries has good title to, or valid leasehold or other ownership interests
or rights in, all its material properties and assets except: (i) for such interest or rights as are no longer used or useful in the
conduct of its businesses or as have been disposed of in the ordinary course of business consistent with past practice, and (ii) for
defects in title, burdens, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and
will not interfere with its ability to conduct its business as currently conducted. As of the date of this Agreement, none of the properties
and assets of the Company or any of its Subsidiaries are subject to any Liens (other than Permitted Liens) that, in the aggregate, interfere
with the ability of the Company and the Company Subsidiaries to conduct business as currently conducted to an extent that have had or
would reasonably be expected to have a Company Material Adverse Effect.
Section 3.20
Hydrocarbon Contracts.
(a)
Except in each case as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) the Hydrocarbon Contracts are in full force and effect in accordance with their respective terms; (ii) all royalties, rentals
and other payments due thereunder have been properly and timely paid or contested in good faith in the ordinary course of business (other
than royalties, rentals or other payments which are being held in suspense by the Company or any of its Subsidiaries in accordance with
applicable laws); (iii) neither the Company nor any of its Subsidiaries has received any written requests or demands for payments
or adjustments of payments under the Hydrocarbon Contracts (excluding payment adjustments contested in good faith in the ordinary course
of business) or performance pursuant thereto that remain pending; (iv) none of the Company or any of its Subsidiaries is in breach
of any of its obligations under any Hydrocarbon Contracts; and (v) to the knowledge of the Company, no other party to any Hydrocarbon
Contract is in breach of any of its obligations thereunder. The term “Hydrocarbon Contract” means a material Hydrocarbon
production sharing contract (excluding any production sharing contract customarily used in the
U.S. for drilling allocation wells), lease or license or other similar
agreement or right binding on the Company or any of its Subsidiaries to explore for, develop, use, produce, sever, process and operate
Hydrocarbon interests and associated fixtures or structures for a specified period of time. The term “Hydrocarbon Contract”
also includes any material farm-out or farm-in agreement, operating agreement, unit agreement, pooling or communitization agreement, declaration
or order, joint venture, option or acquisition agreement, any material oil and gas production, sales, marketing, transportation, exchange
and processing contract and agreement, or any other material contract held for exploration or production of Hydrocarbons, or the disposition
of the Hydrocarbons produced therefrom, in each case to which the Company or any of its Subsidiaries is a party. The term “Hydrocarbons”
means any of oil, bitumen and products derived therefrom, synthetic crude oil, petroleum, natural gas, natural gas liquids, coal bed methane,
and any and all other substances produced in association with any of the foregoing, whether liquid, solid or gaseous.
(b)
Except in each case as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect,
(i) the Company and its Subsidiaries have filed with the applicable government authorities all applications and obtained all licenses,
permits and other authorizations required for operations under the Hydrocarbon Contracts as currently being conducted by the Company and
its Subsidiaries, and (ii) the Company and its Subsidiaries have complied with all rules and regulations of any applicable government
authority with respect to operations under the Hydrocarbon Contracts.
Section 3.21
Material Contracts.
(a)
Except for this Agreement, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound
by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding (i) any
Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) that is a lease, easement or other
instrument constituting the chain of title to the properties and assets onshore in the United States owned or held by the Company or any
of its Subsidiaries and (ii) any Company Benefit Plan) (each, a “Contract”) that:
(i)
would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of
Regulation S-K of the SEC);
(ii)
includes any contingent payment obligations or similar payment obligations (including any “earn-out” obligations) that
would require payments to any person (other than the Company, a wholly-owned Subsidiary of the Company, Parent, or any wholly-owned Subsidiary
of the Parent) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which
payment obligations would reasonably be expected to result in future payments by the Company or its Subsidiaries that exceed, individually
or in the aggregate, $100 million;
(iii)
(A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or
any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business
(including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any
material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants
“most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent
or any of its Subsidiaries, including the Company and its Subsidiaries, and would run in favor of any Person (other than the Company,
a wholly-owned Subsidiary of the Company, Parent, or any wholly-owned Subsidiary of Parent);
(iv)
(A) is an indenture, loan or credit Contract, loan note, mortgage Contract, or other Contract representing, or any guarantee of,
indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million (excluding any government-mandated
or state-wide bonds or guarantees) or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person
other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million (excluding any government-mandated or state-wide
bonds or guarantees);
(v)
grants (A) rights of first refusal, rights of first negotiation or similar rights, or (B) puts, calls or similar rights,
to any person (other than the Company or a wholly-owned Subsidiary of the Company) with respect to any asset that is material to the Company;
provided that, in each case of (A) and (B), with respect to any Hydrocarbon Contract (as defined above but disregarding any materiality
qualifiers in such definition) related to any properties or assets owned or held by the Company or any of its Subsidiaries, only to the
extent that such rights would be triggered by the Transactions;
(vi)
was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its
Subsidiaries;
(vii)
limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in
respect of their capital stock, partner interests, membership interests or other equity interests;
(viii)
is a partnership, limited liability company, joint venture or other similar agreement or arrangement, in each case that is material
to the Company, relating to the formation, creation, operation, management or control of any partnership, limited liability company or
joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is
contractually required to invest capital in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company;
(ix)
relates to the acquisition or disposition of any business or assets (other than the purchase and sale of Hydrocarbons and products
in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability
in excess of $100 million in any transaction or series of related transactions;
(x)
is a material joint operating agreement (JOA) in each of the geographic regions set forth in Section 3.21(a)(x) of the Company
Disclosure Schedules (provided that, for these purposes, “material” shall mean material to the Company and its Subsidiaries
with respect to their operations in such geographic region);
(xi)
is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules (such Contracts,
the “Specified Contracts”);
(xii)
is a Contract providing for indemnification of any officer or director of (A) the Company or (B) any of its Significant Subsidiaries
(excluding the MLP and its Subsidiaries); or
(xiii)
is any confidentiality agreement or standstill agreement the Company has entered into with any third party (or any agent thereof)
that is in effect on the date of this Agreement containing any exclusivity or standstill provisions that are or will be binding on the
Company, any of its Subsidiaries or, after the Effective
Time, Parent or any of its Subsidiaries, including, after the Effective Time, the Company or any of its Subsidiaries.
(b)
Each such Contract described in clauses (i) through (xii) and not (xiii) above is referred to herein as a “Material Contract.”
Each Material Contract is a valid and binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the
Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each
case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company
Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to
a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred
that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations
or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy
of each Material Contract has previously been made available to Parent.
Section 3.22
Intellectual Property.
(a)
Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company
and its Subsidiaries possess the valid right to use, license and enforce all patents, patent rights, trademarks, trade names, trade dress,
service marks, Internet domain names, copyrights, applications for any of the foregoing, computer software programs or applications, geophysical
data, trade secrets, know-how, data and other proprietary rights (collectively, “Intellectual Property”) that are necessary
for the conduct of the business of the Company and its Subsidiaries as currently conducted (collectively, the “Company Intellectual
Property” and to the extent owned by the Company and its Subsidiaries the “Company Owned Intellectual Property”).
(b)
Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) to
the knowledge of the Company, since January 1, 2021, the conduct of the business of the Company and its Subsidiaries and use of the
Company Intellectual Property does not and has not infringed upon or otherwise violated any Intellectual Property rights of any other
Person; (ii) to the knowledge of the Company, no third party is challenging, infringing or otherwise violating any right of the Company
and its Subsidiaries in the Company Intellectual Property; (iii) neither the Company nor any of its Subsidiaries has received written
notice of any pending claim, order or proceeding with respect to any alleged or potential infringement or other violation of Intellectual
Property rights of any other Person or with respect to any Company Intellectual Property; and (iv) to the knowledge of the Company,
no Company Intellectual Property is being used or enforced by the Company or any of its Subsidiaries in a manner that would reasonably
be expected to result in the abandonment, cancellation or unenforceability of any Company Intellectual Property. The Company and its Subsidiaries
have taken commercially reasonable measures to maintain the confidentiality of any material proprietary information or trade secrets included
in their respective rights in Company Intellectual Property.
(c)
Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) to
the knowledge of the Company, the Company and its Subsidiaries have not, since January 1, 2021, experienced any unauthorized access
to or other breach of security with respect to the information technology systems that are material to the Company and its Subsidiaries
or to any Personal Data in the custody or control of the Company; (ii) the Company and its Subsidiaries have complied in all material
respects with all applicable laws and with their own respective privacy policies (“Privacy Policies”) relating to the
collection, storage, use, disclosure and transfer of any information held by the Company or its Subsidiaries that can reasonably be used
to identify an individual natural person, including name, street address, telephone number, email address, photograph, social security
number or tax identification number, driver’s license number, passport number, credit card number, bank information, or biometric
identifiers or any other piece of information, or any other information defined as “personal data,” “personally identifiable
information,” “individually identifiable health information,” “protected health information” or “personal
information” under any applicable law and that is regulated by such applicable law (collectively, “Personal Data”)
and neither the Company nor any of its Subsidiaries has received a written complaint from, or to the knowledge of the Company, is subject
to an investigation by, any governmental body, agency, authority or entity or any other third party regarding its collection, storage,
use, disclosure or transfer of Personal Data that is pending or unresolved and, to the knowledge of the Company, there are no facts or
circumstances that would give rise to any such complaints; (iii) there has not been any unauthorized access to, use of, or processing
of Personal Data collected or processed by the Company or any of the Company’s Subsidiaries or by third parties having authorized
access to such information; and (iv) the Company and its Subsidiaries have commercially reasonable security measures in place designed
to protect any Personal Data stored in their respective information technology systems from unlawful use or access by any third party
or any other access or use that would violate applicable law.
Section 3.23
Brokers; Financial Advisor. No broker, investment banker, financial advisor or other Person, other than Goldman Sachs &
Co., LLC (“Goldman Sachs”) and J.P. Morgan Securities LLC, the fees and expenses of which will be paid by the Company,
is entitled to any broker’s, finder’s, financial advisor’s or other similar based fee or commission in connection with
the Merger as a result of being engaged by the Company or any Subsidiary or affiliate of the Company. The Company has made available to
Parent complete and correct copies of all agreements under which such fee, commission, or other like payment is payable and all indemnification
and other agreements under which any such fee or commission is payable.
Section 3.24
Opinion of Financial Advisor. The Company has received the oral opinion of Goldman Sachs, to be subsequently confirmed by
delivery of a written opinion, to the effect that, as of the date of such opinion and based upon and subject to the factors and assumptions
set forth therein, the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of Company Common Stock is
fair from a financial point of view to such holders.
Section 3.25
Takeover Statutes. Assuming the accuracy of the representations and warranties set forth in Section 4.17, the
Board of Directors of the Company has taken the necessary action to render Section 203 of the DGCL and no other antitakeover or similar
statute or regulation is applicable to this Agreement, the Merger and the other Transactions.
Section 3.26
Reorganization. The Company has not taken or agreed to take
any action, and is not aware, after reasonable diligence, of the existence of any fact or circumstance that could reasonably be expected
to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
Section 3.27
No Additional Representations.
(a)
Except for the representations and warranties made in (i) this Article III, as qualified by the Company Disclosure
Schedules, or (ii) any certificate delivered pursuant to this Agreement, neither the Company nor any other Person makes any express
or implied representation or warranty with respect to the Company or its Subsidiaries or their respective businesses, operations, assets,
liabilities or conditions (financial or otherwise) in connection with this Agreement, the Merger or the other Transactions, and the Company
hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except for the
representations or warranties expressly provided in this Article III, as qualified by the Company Disclosure Schedules or
in any certificate delivered pursuant to this Agreement, neither the Company nor any other Person makes or has made any representation
or warranty to Parent or any of its affiliates or representatives with respect to (x) any financial projection, forecast, estimate,
budget or prospect information relating to the Company or any of its Subsidiaries or their respective businesses; or (y) except for
the representations or warranties expressly made in this Article III, as qualified by the Company Disclosure Schedules, or
in any certificate delivered pursuant to this Agreement, any oral or written information presented to Parent or any of its affiliates
or representatives in the course of their due diligence investigation of the Company, the negotiation of this Agreement or in the course
of the Merger or the other Transactions.
(b)
Notwithstanding anything contained in this Agreement to the contrary, the Company acknowledges and agrees that neither Parent nor
any other Person has made or is making, and the Company expressly disclaims reliance upon, any representations, warranties or statements
relating to Parent or its Subsidiaries whatsoever, express or implied, beyond those expressly given by Parent and Merger Subsidiary in
Article IV, as qualified by the Parent Disclosure Schedules, or in any certificate delivered pursuant to this Agreement or
in the Support Agreement, including any implied representation or warranty as to the accuracy or completeness of any information regarding
Parent furnished or made available to the Company, or any of its representatives. Without limiting the generality of the foregoing, the
Company acknowledges that, except for the representations and warranties expressly provided in Article IV, as qualified by
the Parent Disclosure Schedules, or in any certificate delivered pursuant to this Agreement, no representations or warranties are made
with respect to any projections, forecasts, estimates, budgets or prospect information that may have been made available to the Company
or any of its representatives.
Article
IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY
Parent and Merger Subsidiary represent and warrant
to the Company that, except as disclosed (i) in the Parent SEC Documents (as hereinafter defined) filed or furnished on or
after January 1, 2021 and prior to the date of this Agreement
(excluding any disclosures in such Parent SEC Documents in any risk factors section, in any section related to forward looking statements
and other disclosures that are predictive or forward-looking in nature, in each case other than any description of historic facts or events
included therein) or (ii) in the correspondingly numbered section of the disclosure schedules delivered by Parent to the Company
simultaneously with the execution of this Agreement (the “Parent Disclosure Schedules”) (it being agreed that disclosure
of any item in any section or subsection of the Parent Disclosure Schedules shall be deemed disclosure with respect to any other section
or subsection of this Agreement to which the relevance of such item is reasonably apparent, notwithstanding the omission of a cross-reference
to such other section or subsection):
Section 4.1
Corporate Existence and Power. Each of Parent and Merger Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has all corporate powers and all governmental franchises, licenses, permits,
authorizations, consents and approvals required to enable it to own, lease or otherwise hold its properties and assets and to carry on
its business as now conducted, except for those the absence of which would not, individually or in the aggregate, be reasonably likely
to have a Parent Material Adverse Effect (as defined below). Parent is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the property owned or leased by it or the nature of its activities or the
ownership or leasing of its properties make such qualification necessary, except for those jurisdictions where the failure to be so qualified
would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect. For purposes of this Agreement,
the term “Parent Material Adverse Effect” means any Effect that, individually or in the aggregate, results in a material
adverse effect on the financial condition, business, assets or continuing results of operations of Parent and its Subsidiaries, taken
as a whole; provided, however, that in no event shall any of the following Effects, alone or in combination, be deemed to
constitute, or be taken into account, in determining whether there has been, or would be, a Parent Material Adverse Effect: (A) any
changes or conditions in the U.S. or any other national or regional economy, any global economic changes or conditions or securities,
credit, financial or other capital markets conditions, (B) any changes or conditions affecting the oil and gas industry in general
(including changes to the prices of commodities or of the raw material inputs or value of the outputs of Parent’s products, general
market prices and regulatory changes affecting the industry), (C) any weather-related or other force majeure event or outbreak
(including earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters), (D) pandemics,
epidemics, COVID-19 Measures, acts of war (whether or not declared), armed hostility (by recognized governmental forces or otherwise),
sabotage, terrorism or cyber-attack, and any escalation or general worsening of any of the foregoing or other response to any governmental
bodies, agencies, officials or authorities (including requirements for business closures, restrictions on operations or “sheltering-in-place”),
(E) Effects resulting from the negotiation, execution, announcement, pendency, compliance with or performance of this Agreement,
the transactions contemplated hereby or the terms hereof or the consummation of the transactions contemplated hereby, including the impact
thereof on the relationships of Parent and its Subsidiaries with customers, suppliers, partners, employees or governmental bodies, agencies,
officials or authorities; provided that this clause (E) shall not apply to any representation or warranty set forth
in Section 4.4 (or any condition to any party’s obligation to consummate the Merger relating to such representation
and warranty) to the extent that such representation and
warranty addresses the consequences of any Effect arising out of,
relating to or resulting from the execution and delivery of this Agreement or the consummation of the Merger, (F) any action taken
or failure to take action which the Company has requested in writing, (G) changes in applicable law, regulation or government policy
or in GAAP or in accounting standards, or any changes in the interpretation or enforcement of any of the foregoing, or any changes in
general legal, regulatory or political conditions, including any Effects arising out of, in connection with, or as a result of, any “shut-down”
of the U.S. federal government (including its agencies), (H) any decline in the market price, or change in trading volume, of Parent’s
capital stock, (I) any failure to meet any internal or public projections, forecasts, guidance, estimates, milestones, or budgets
or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position or (J) any downgrade
in Parent’s credit rating (it being understood that the exceptions in clauses (H), (I) and (J) shall not prevent or
otherwise affect a determination that the underlying cause of any such Effect referred to therein (if not otherwise falling within any
of the exceptions provided hereof) is a Parent Material Adverse Effect); provided that, in the case of clauses (A), (B),
(C) and (D), to the extent the impact on Parent and its Subsidiaries, taken as a whole, is disproportionately adverse compared
to the impact on similarly situated entities, the incrementally disproportionate impact or impacts shall be taken into account in determining
whether there has been, or would reasonably be expected to be, a Parent Material Adverse Effect. Merger Subsidiary is a direct, wholly-owned
subsidiary of Parent that was formed solely for the purpose of engaging in the Merger. Since the date of its incorporation, Merger Subsidiary
has not engaged in any activities other than in connection with or as contemplated by this Agreement. Parent has heretofore made available
to the Company true and complete copies of Parent’s and Merger Subsidiary’s certificate of incorporation and by-laws as currently
in effect.
Section 4.2
Corporate Authorization.
(a)
The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation by Parent and Merger
Subsidiary of the transactions contemplated hereby are within the corporate powers of Parent and Merger Subsidiary and have been duly
authorized by all necessary corporate action. Assuming due authorization, execution and delivery of this Agreement by the Company, this
Agreement constitutes a valid and binding agreement of each of Parent and Merger Subsidiary, enforceable against such party in accordance
with its terms, subject to Creditors’ Rights. The shares of Parent Common Stock issued pursuant to the Merger, when issued in accordance
with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
(b)
The Board of Directors of Parent, at a meeting duly called and held on or prior to the date of this Agreement, has unanimously
(i) determined that this Agreement and the issuance of Parent Common Stock pursuant to this Agreement and the other Transactions
are fair to, and in the best interests of, Parent and Parent’s stockholders and (ii) approved and declared advisable this Agreement
and the Transactions.
(c)
The Board of Directors of Merger Subsidiary has unanimously (i) determined that this Agreement and the Transactions are fair
to, and in the best interests of, Merger Subsidiary’s sole stockholder, (ii) approved and declared advisable this Agreement
and
the Transactions and (iii) submitted this Agreement to Parent,
as sole stockholder of Merger Subsidiary, for adoption thereby and recommended that Parent approve and adopt this Agreement and the Transactions.
Section 4.3
Governmental Authorization. The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and
the consummation by Parent and Merger Subsidiary of the transactions contemplated hereby require no action by or in respect of, or filing
with, any governmental body, agency, official or authority other than (a) the filing of a certificate of merger in accordance with
the DGCL, (b) compliance with any applicable requirements of the HSR Act, (c) compliance with any applicable requirements of
laws, rules and regulations in foreign jurisdictions governing antitrust or merger control matters, (d) compliance with any applicable
requirements of the Exchange Act, (e) compliance with any applicable requirements of the Securities Act, (f) the appropriate
filings and approvals under the rules of the NYSE, (g) (if any) filings required to be made with the FCC and (h) other actions or
filings the absence or omission of which would not, individually or in the aggregate, be reasonably likely to have (i) a Parent Material
Adverse Effect or (ii) prevent or materially delay consummation by Parent of the Merger beyond the Initial End Date (this clause (ii),
a “Parent Impairment Effect”).
Section 4.4
Non-Contravention. The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation
by Parent and Merger Subsidiary of the transactions contemplated hereby do not and will not, assuming compliance with the matters referred
to in Sections 4.2 and 4.3, (a) contravene or conflict with the certificate of incorporation or by-laws of Parent
or Merger Subsidiary, (b) contravene or conflict with or constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Parent or any of its Subsidiaries, (c) constitute a default (or an event
which with notice or the passage of time would become a default) under, or give rise to any right of termination, cancellation or acceleration
of any right or obligation of Parent or any of its Subsidiaries or to a loss of any benefit to which Parent or any of its Subsidiaries
is entitled under any provision of, any agreement, contract or other instrument binding upon Parent or any of its Subsidiaries or any
license, franchise, permit or other similar authorization held by Parent or any of its Subsidiaries or (d) result in the creation
or imposition of any Lien (other than Liens arising under securities laws) on any asset of Parent or any of its Subsidiaries, except for
such contraventions, conflicts or violations referred to in clause (b) or defaults, rights of termination, cancellation or
acceleration or losses or Liens referred to in clause (c) or (d) that would not, individually or in the aggregate,
be reasonably likely to have (i) a Parent Material Adverse Effect or (ii) a Parent Impairment Effect. The approval of the stockholders
of Parent is not required by applicable law or the rules of the NYSE to effect the transactions contemplated by this Agreement. To Parent’s
knowledge as of the date of this Agreement, there is no Effect that would reasonably be expected to prevent, materially impede or materially
interfere with the consummation by Parent or Merger Subsidiary of the Merger and the Transactions.
Section 4.5
Capitalization. The authorized capital stock of Parent consists of 6,000,000,000 shares of Parent Common Stock, and 100,000,000
shares of preferred stock, par value $1.00 per share (“Parent Preferred Stock”). As of the close of business on October
19, 2023 (the “Parent Measurement Date”), there were outstanding (i) 1,882,048,423 shares of Parent Common Stock
(for the avoidance of doubt, excluding shares of Parent Common Stock
held in treasury), (ii) no shares of Parent Preferred Stock,
(iii) 560,628,157 shares of Parent Common Stock held in treasury and (iv) no other shares of capital stock or other voting securities
of Parent. All outstanding shares of capital stock of Parent have been duly authorized and validly issued and are fully paid and
nonassessable. As of the close of business on the Parent Measurement Date, there were outstanding (A) options to purchase 24,726,499
shares of Parent Common Stock and (B) other stock-based awards (other than shares of restricted stock or other equity-based awards
included in the number of shares of Parent Common Stock outstanding set forth above) with respect to 10,579,149shares of Parent Common
Stock. Except as set forth in this Section 4.5 and except for changes since the close of business on the Parent Measurement
Date resulting from the exercise of employee stock options outstanding on such date, or the payment or redemption of other stock-based
awards outstanding on such date and except for the shares to be issued in connection with the Merger, there are outstanding, as of the
date of this Agreement, (a) no shares of capital stock or other voting securities of Parent, and (b) except for securities issuable
pursuant to employee benefit plans or arrangements, including options issued pursuant to Parent stock option plans and awards payable
in Parent Common Stock, (1) no options, warrants or other rights to acquire from Parent any capital stock or voting securities of
Parent or securities convertible into or exchangeable for capital stock or voting securities of Parent, (2) no bonds, debentures,
notes or other indebtedness of Parent or any of its Subsidiaries, in each case, that are linked to, or calculated based on, the value
of Parent or any of its Subsidiaries, or otherwise based upon or derived from any dividends or other distributions declared or paid on
any shares of capital stock of, or other equity or voting interests in, Parent or any of its Subsidiaries, or which have or which by their
terms may have at any time (whether actual or contingent) the right to vote (or which are convertible into, or exchangeable for, securities
having the right to vote) on any matters on which stockholders of Parent or any of its Subsidiaries may vote and (3) no preemptive
or similar rights, subscription or other rights, convertible securities, agreements, arrangements or commitments of any character relating
to the capital stock of Parent, obligating Parent to issue, transfer or sell any capital stock, voting securities of Parent or securities
convertible into or exchangeable for capital stock or voting securities of Parent or obligating Parent to grant, extend or enter into
any such option, warrant, subscription or other right, convertible security, agreement, arrangement or commitment (the items in the foregoing
subclauses (a) and (b) being referred to collectively as “Parent Securities”). Except as required
by the terms of any employee or director options or other stock-based awards, there are no outstanding obligations of Parent or any of
its Subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities.
Section 4.6
SEC Filings.
(a)
Parent has made available to the Company (i) its annual reports on Form 10-K for its fiscal years ended December 31,
2021 and 2022, (ii) its proxy or information statements relating to meetings of, or actions taken without a meeting by, the stockholders
of Parent held since December 31, 2021 and (iii) all of its other reports, statements, schedules and registration statements
filed with the SEC since December 31, 2021 (the documents referred to in this Section 4.6(a) being referred to collectively
as the “Parent SEC Documents”). Parent’s annual report on Form 10-K for its fiscal year ended December 31,
2022 is referred to herein as the “Parent 10-K.” Parent’s quarterly report on Form 10-Q for the fiscal quarter
ended June 30, 2023 is referred to herein as the “Parent 10-Q.”
(b)
As of its filing date, each Parent SEC Document complied as to form in all material respects with the applicable requirements
of the Exchange Act, the Securities Act and the Sarbanes-Oxley Act and the rules and regulations thereunder.
(c)
As of its filing date, each Parent SEC Document filed pursuant to the Exchange Act did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading.
(d)
Each registration statement, as amended or supplemented, if applicable, filed by Parent since January 1, 2021 pursuant to
the Securities Act, as of the date such statement or amendment became effective, did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(e)
Parent has timely filed with or furnished to the SEC all forms, reports, schedules, registration statements, proxy statements and
other documents required to be filed with or furnished to the SEC by Parent since January 1, 2021.
Section 4.7
Financial Statements. The audited consolidated financial statements of Parent (including any related notes and schedules)
included in the annual reports on Form 10-K referred to in Section 4.6 present fairly, in all material respects, the consolidated
financial position of Parent and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations
and their cash flows for the periods then ended, in each case, in conformity with GAAP applied on a consistent basis (except as may be
indicated in the notes thereto). For purposes of this Agreement, “Parent Balance Sheet” means the consolidated balance
sheet of Parent, as of June 30, 2023, set forth in the Parent 10-Q and “Parent Balance Sheet Date” means June 30, 2023.
Section 4.8
Disclosure Documents.
(a)
The Registration Statement on Form S-4 of Parent (the “Form S-4”) to be filed under the Securities
Act relating to the issuance of Parent Common Stock in the Merger, and any amendments or supplements thereto, will, when filed, subject
to the last sentence of Section 4.8(b), comply as to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act.
(b)
Neither the Form S-4 nor any amendment or supplement thereto will at the time it becomes effective under the Securities
Act or at the Effective Time contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, no representation or warranty is made by Parent in this Section 4.8 with respect to statements
made or incorporated by reference therein based on information supplied by the Company for inclusion or incorporation by reference in
the Form S-4.
(c)
None of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Company Proxy Statement
or any amendment or
supplement thereto will, at the date the Company Proxy Statement
or any such amendment or supplement thereto is first mailed to stockholders of the Company or at the time such stockholders vote on the
adoption and approval of this Agreement and the transactions contemplated hereby, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading.
Section 4.9
Controls and Procedures.
(a)
Each of the principal executive officer and the principal financial officer of Parent (or each former principal executive officer
and former principal financial officer of Parent, as applicable) has made all certifications required under Sections 302 and 906
of the Sarbanes-Oxley Act with respect to Parent SEC Documents. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.
(b)
Parent has (i) designed and maintained disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange
Act) to ensure that material information required to be disclosed by Parent in the reports it files or furnishes under the Exchange Act
is communicated to its management by others within those entities as appropriate to allow timely decisions regarding required disclosure,
(ii) disclosed, based on its most recent evaluation, to its auditors and the audit committee of its Board of Directors (A) any
significant deficiencies or material weaknesses in the design or operation of internal controls over financial reporting which could adversely
affect its ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in its internal controls over financial reporting and (iii) identified
for Parent’s auditors any material weaknesses in internal controls over financial reporting. Parent has provided to the Company
true and correct copies of any of the foregoing disclosures to the auditors or audit committee of Parent that have been made in writing
from January 1, 2021 through the date of this Agreement, and will promptly provide to the Company true and correct copies of any
such disclosure that is made after the date of this Agreement.
(c)
Parent has designed and maintains a system of internal controls over financial reporting (as defined in Rule 13a-15(f) under the
Exchange Act) sufficient to provide reasonable assurance concerning the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP, including reasonable assurance (i) that transactions are executed in accordance
with management’s general or specific authorizations and recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability and (ii) regarding prevention or timely detection of any unauthorized acquisition,
use or disposition of assets that could have a material effect on Parent’s financial statements. Parent’s management, with
the participation of Parent’s principal executive and financial officers, has completed an assessment of the effectiveness of Parent’s
internal controls over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year
ended December 31, 2022, and such assessment concluded that such internal controls were effective using the framework specified in
the Parent 10-K.
(d)
No personal loan or other extension of credit by Parent or any Subsidiary to any of its or their executive officers or directors
has been made or modified in violation of Section 13 of the Exchange Act and Section 402 of the Sarbanes-Oxley Act since January 1,
2021.
(e)
Since January 1, 2021, neither Parent nor any of its Subsidiaries nor, to Parent’s knowledge, any director, officer,
employee, auditor, accountant or representative of Parent or any of its Subsidiaries has received any written complaint, allegation, assertion,
or claim that Parent or any of its Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper
or inadequate internal accounting controls.
Section 4.10
Absence of Certain Changes.
(a)
From the Parent Balance Sheet Date to the date of this Agreement, Parent and its Subsidiaries have conducted their business in
the ordinary course of business consistent with past practice in all material respects.
(b)
From the Parent Balance Sheet Date, there has not been any event, occurrence, change or development of a state of circumstances
or facts which, individually or in the aggregate, has had, or would be reasonably likely to have, a Parent Material Adverse Effect.
Section 4.11
No Undisclosed Material Liabilities. As of the date of this Agreement, there are no liabilities of Parent or any Subsidiary
of Parent of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise that, individually or in
the aggregate, are material to Parent and its Subsidiaries, taken as a whole, other than:
(a)
liabilities disclosed or provided for in the Parent Balance Sheet or the notes thereto;
(b)
liabilities incurred since the Parent Balance Sheet Date in the ordinary course of business consistent with past practice and which,
individually or in the aggregate, would not be reasonably likely to have a Parent Material Adverse Effect;
(c)
liabilities disclosed in the Parent SEC Documents filed prior to the date of this Agreement;
(d)
liabilities or obligations that have been discharged or paid in full in the ordinary course of business consistent with past practice;
and
(e)
liabilities under this Agreement or in connection with the Transactions.
Section 4.12
Litigation. As of the date of this Agreement, there is no action, suit, investigation or proceeding, pending against, or,
to the knowledge of Parent, threatened against or affecting, Parent, any of its Subsidiaries, any of their respective properties or any
of their respective officers or directors before any court, arbitrator or any governmental body, agency, authority or official except
as would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect.
Section 4.13
Compliance with Laws. To Parent’s knowledge, neither
Parent nor any of its Subsidiaries is in violation of, or has since January 1, 2021 violated, any applicable provisions of any laws,
statutes, ordinances or regulations except for any violations that, individually or in the aggregate, have not had, and would not be reasonably
likely to have, a Parent Material Adverse Effect.
Section 4.14
Regulatory Matters.
(a)
Except as would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect, since January 1,
2018, (i) none of the Parent, any of its Subsidiaries, nor any Parent or Subsidiary director, officer, employee, nor, to the knowledge
of the Parent, any representative, agent, or other person acting on behalf of the Parent or any of its Subsidiaries, has violated any
Anti-Corruption Law, and (ii) none of the Parent, any of its Subsidiaries nor any Parent or Subsidiary director, officer, employee,
nor, to the knowledge of the Parent, any representative, agent or any other person acting on behalf of the Parent or any of its Subsidiaries,
has offered, paid, given, promised, or authorized the payment of, anything of value (including, but not limited to, money, checks, wire
transfers, tangible and intangible gifts, favors, services, employment or entertainment and travel) directly or indirectly to any Government
Official (A) for the purpose of (1) influencing any act or decision of a Government Official or any other person in his
or her official capacity, (2) inducing a Government Official or any other person to do or omit to do any act in violation of his
or her lawful duties, (3) securing any improper advantage, (4) inducing a Government Official or any other person to influence
or affect any act or decision of any governmental body, agency, authority or entity or (5) assisting the Parent, any Subsidiary of
the Parent, or any Parent or Subsidiary director, officer employee, agent, representative, or any other person acting on behalf of the
Parent or any of its Subsidiaries in obtaining or retaining business, or (B) in a manner which would constitute or have the purpose
or effect of public or commercial bribery or corruption, acceptance of, or acquiescence in extortion, kickbacks, or other unlawful or
improper means of obtaining or retaining business or any improper advantage.
(b)
Except as would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect, (i) the
Parent, each of its Subsidiaries and their respective directors, officers, employees, and, to the knowledge of the Parent, agents, representatives
and other persons acting for or on behalf of any of the foregoing persons, are, and at all times since January 1, 2018 have been,
in compliance with all applicable Economic Sanctions/Trade Laws and all applicable Money Laundering Laws and (ii) neither the Parent
nor any of its Subsidiaries carries on, or has carried on since January 1, 2018, any business, directly or knowingly indirectly,
involving Cuba, Iran, Syria, North Korea, the Crimea region, or the so-called Donetsk or Luhansk People’s Republics or any Sanctions
Target in violation of applicable Economic Sanctions/Trade Laws.
(c)
Except as would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect, since January 1,
2018 (i) neither the Parent nor any of its Subsidiaries has conducted or initiated any internal investigation, review or audit, or
made a voluntary, directed, or involuntary disclosure to any governmental body, agency, authority or entity or third party with respect
to any alleged or suspected act or omission arising under or relating to any potential noncompliance with any applicable Anti-Corruption
Law, Economic Sanctions/Trade Law, or Money Laundering Law, (ii) neither
the Parent nor any of its Subsidiaries, nor any of their respective directors or officers, nor, to the knowledge of the Parent, any agents,
employees (other than officers) representatives, or any other person acting at the direction of the Parent or any of its Subsidiaries
has received any written notice, request or citation for any actual or potential noncompliance with any applicable Anti-Corruption Law,
Economic Sanctions/Trade Law or Money Laundering Law, (iii) the Parent and its Subsidiaries have implemented and have maintained
internal controls, policies and procedures designed to detect and prevent violations of Anti-Corruption Laws, Economic Sanctions/Trade
Laws and Money Laundering Laws, and (iv) the Parent and each of its Subsidiaries have at all times made and maintained accurate books
and records in material compliance with all applicable Anti-Corruption Laws, Economic Sanctions/Trade Laws or Money Laundering Laws.
Section 4.15
Capitalization of Merger Subsidiary. The authorized capital stock of Merger Subsidiary consists solely of 1,000 shares of
common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock
of Merger Subsidiary is, and at the Effective Time will be, owned by Parent. Merger Subsidiary has not engaged in any activities other
than the execution of this Agreement, the performance of its respective obligations hereunder, and matters ancillary thereto, and prior
to the Effective Time will have, no assets, liabilities or obligations of any nature other than those incident to its formation and pursuant
to this Agreement, the Merger and the other transactions contemplated by this Agreement.
Section 4.16
Reorganization. Parent has not taken or agreed to take any action, and is not aware, after reasonable diligence, of the
existence of any fact or circumstance, that could reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code.
Section 4.17
Ownership of Company Common Stock. Neither Parent nor any of its Subsidiaries (including Merger Subsidiary) owns or has
owned at any time in the three years preceding the date of this Agreement any shares of Company Common Stock beneficially or of record.
Section 4.18
No Additional Representations.
(a)
Except for the representations and warranties made in (i) this Article IV, as qualified by the Parent Disclosure
Schedules, (ii) any certificate delivered pursuant to this Agreement or (iii) the Support Agreement, neither Parent nor any
other Person makes any express or implied representation or warranty with respect to Parent or its Subsidiaries or their respective businesses,
operations, assets, liabilities or conditions (financial or otherwise) in connection with this Agreement, the Merger or the other Transactions,
and Parent hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except
for the representations or warranties expressly provided in this Article IV, as qualified by the Parent Disclosure Schedules,
or in any certificate delivered pursuant to this Agreement or in the Support Agreement, neither Parent nor any other Person makes or has
made any representation or warranty to the Company or any of its affiliates or representatives with respect to (i) any financial
projection, forecast, estimate, budget or prospect information relating to Parent or any of its Subsidiaries or their respective businesses;
or
(ii) except for the representations and warranties expressly
made in this Article IV, as qualified by the Parent Disclosure Schedules, or in any certificate delivered pursuant to this
Agreement or in the Support Agreement, any oral or written information presented to the Company or any of its affiliates or representatives
in the course of their due diligence investigation of Parent, the negotiation of this Agreement or in the course of the Merger or the
other Transactions.
(b)
Notwithstanding anything contained in this Agreement to the contrary, each of Parent and Merger Subsidiary acknowledges and agrees
that neither the Company nor any other Person has made or is making, and each of Parent and Merger Subsidiary expressly disclaims reliance
upon, any representations, warranties or statements relating to the Company or its Subsidiaries whatsoever, express or implied, beyond
those expressly given by the Company in Article III, as qualified by the Company Disclosure Schedules or in any certificate
delivered pursuant to this Agreement, including any implied representation or warranty as to the accuracy or completeness of any information
regarding the Company or its Subsidiaries furnished or made available to Parent or Merger Subsidiary or any of their respective representatives.
Without limiting the generality of the foregoing, each of Parent and Merger Subsidiary acknowledge that, except for the representations
and warranties expressly provided in Article III, as qualified by the Company Disclosure Schedules, or in any certificate
delivered pursuant to this Agreement, no representations or warranties are made with respect to any projections, forecasts, estimates,
budgets or prospect information that may have been made available to Parent or Merger Subsidiary or any of their respective representatives.
Article
V
COVENANTS OF THE COMPANY
The Company agrees that:
Section 5.1
Conduct of the Company. From the date of this Agreement until the Effective Time, except with the prior written consent
of Parent (such consent not to be unreasonably withheld, conditioned or delayed), as expressly permitted or required by this Agreement,
as may be required by applicable law or any COVID-19 Measures required by applicable law and any action taken, or omitted to be taken,
by the Company or its Subsidiaries pursuant thereto or as set forth in Section 5.1 of the Company Disclosure Schedules, the
Company and its Subsidiaries shall use all reasonable best efforts to conduct their business (x) in the ordinary course of business consistent
with past practice and shall use their commercially reasonable efforts to preserve intact their business organizations and material relationships
with third parties; provided, that this Section 5.1(x) shall not prohibit the Company and its Subsidiaries from taking commercially
reasonable (taking into account the reasonableness perspective of each of Parent and the Company) actions outside of the ordinary course
or not consistent with past practice in response to external unforeseen events, changes or developments of the type set forth in clauses
(A)-(D), or clause (G) of the definition of Company Material Adverse Effect in a manner consistent with those generally undertaken by
businesses similarly situated to the Company and (y) in a manner not involving the entry by the Company or its Subsidiaries into
businesses that are materially different from the businesses of the Company and its Subsidiaries on the date of this Agreement. For the
purposes of this Agreement, “COVID-19 Measures” means any quarantine, “shelter in place,” “stay at
home,” social distancing, shut
down, closure, sequester, safety or similar laws, directives, restrictions,
guidelines, responses, or recommendations of, or promulgated by, any governmental agency, including the Centers for Disease Control and
Prevention and the World Health Organization, or other reasonable actions taken, in each case, in connection with or in response to COVID-19.
For the purposes of this Agreement, “COVID-19” means SARS-CoV-2 or COVID-19, and any evolution or variant thereof or
any related or associated epidemic, pandemic, or disease outbreak. Without limiting the generality of the foregoing, except with the prior
written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), as expressly permitted or required by
this Agreement, as may be required by applicable law or any COVID-19 Measures required by applicable law and any action taken, or omitted
to be taken, by the Company or its Subsidiaries pursuant thereto or as set forth in Section 5.1 of the Company Disclosure
Schedules, from the date of this Agreement until the Effective Time:
(a)
the Company will not (i) adopt or propose any change in its certificate of incorporation or by-laws or (ii) permit any of its Significant
Subsidiaries to adopt or propose any change in such Significant Subsidiary’s certificate of incorporation, by-laws or similar organizational
or governing documents;
(b)
the Company will not, and will not permit any Significant Subsidiary of the Company to, adopt a plan or agreement of complete or
partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any
of its Significant Subsidiaries;
(c)
the Company will not, and will not permit any Subsidiary of the Company to, issue, sell, transfer, pledge, dispose of or encumber
any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire,
any shares of capital stock of any class or series of the Company or its Subsidiaries other than (i) issuances of Company Common
Stock or Class A Shares pursuant to the exercise or settlement (as applicable) of Company Options, Company RS Awards, Company PSU Awards
or Phantom Units that are outstanding on the date of this Agreement or granted thereafter not in violation of this Section 5.1,
(ii) pledges or encumbrances with respect to Subsidiaries of the Company securing indebtedness under the MLP Credit Agreement, or
(iii) issuances made by any Subsidiary of the Company to the Company or any wholly-owned Subsidiary of the Company;
(d)
the Company will not, and, solely in the case of clause (ii), will not permit any Subsidiary of the Company to, (i) split,
combine, subdivide or reclassify its outstanding shares of capital stock, or (ii) declare, set aside or pay any dividend or other
distribution payable in cash, stock or property with respect to its capital stock other than (A) in the case of the Company, regular
quarterly cash dividends or distributions payable by the Company to shareholders, which dividends or distributions shall not exceed $0.4375
per share of Company Common Stock per fiscal quarter and shall otherwise be consistent with past practice, including with respect to timing
of declaration and payment (and in any event will not include any special dividend), (B) in the case of the MLP, regular quarterly cash
distributions solely from Available Cash (as defined in the MLP Partnership Agreement) and which are otherwise consistent with past practice,
including with respect to timing of declaration or payment (and in any event will not include any special dividend), (C) dividends
or distributions paid by any
Subsidiary of the Company to the Company or any wholly-owned Subsidiary
of the Company or (D) dividends or distributions from Opco to the MLP or dividends or distributions paid by any Subsidiary of Opco to
Opco or any wholly-owned Subsidiary of Opco (provided that, in the case of this clause (D), such dividends or distributions do
not result in any adverse tax cost that is material to the Company and its Subsidiaries (taken as a whole)); provided, however,
that the Company shall not declare, set aside or pay any dividend except in accordance with, and the foregoing shall not restrict any
dividend declared and paid in accordance with, Section 7.11;
(e)
the Company will not, and will not permit any Subsidiary of the Company to, redeem, purchase or otherwise acquire directly or indirectly
any of the Company’s or any Subsidiary’s capital stock, except for repurchases, redemptions or acquisitions (i) required
by the terms of its capital stock or any securities outstanding on the date of this Agreement or (ii) required by or in connection
with the respective terms, as of the date of this Agreement, of any Company Benefit Plan or any dividend reinvestment plan as in effect
on the date of this Agreement in the ordinary course of the operations of such plan consistent with past practice and only to the extent
consistent with Section 7.4, (iii) with respect to the forfeiture, exercise, vesting, settlement or satisfaction of applicable
Tax withholding and/or exercise prices of Company Stock Options, Company RS Awards, Company PSU Awards or Phantom Units outstanding as
of the date of this Agreement or granted thereafter not in violation of this Section 5.1 or (iv) involving only wholly-owned
Subsidiaries of the Company;
(f)
the Company will not amend the material terms (including the terms relating to accelerating the vesting or lapse of repurchase
rights or obligations) of any outstanding Company Options, Company RS Awards or Company PSU Awards (which, it is understood, will not
limit the administration of the relevant plans governing such awards in accordance with past practices and interpretations of the Company’s
Board of Directors and the Company’s Compensation and Management Development Committee);
(g)
the Company will not, and will not permit any Subsidiary (excluding the MLP, Opco and their Subsidiaries) of the Company to, make
or authorize any capital expenditures except in amounts that are not in excess of, (i) during fiscal year 2023, 110% of the aggregate
budgeted amount for each geographic region and category indicated in the capital budget for the fiscal year 2023 set forth in Section 5.1(g)
of the Company Disclosure Schedules, (ii) during fiscal year 2024, 110% of the aggregate budgeted amount for each geographic region
and category indicated in the draft capital budget for the fiscal year 2024 set forth in Section 5.1(g) of the Company Disclosure
Schedules, and (iii) during fiscal year 2025, 110% of the aggregate budgeted amount for each geographic region and category indicated
in the draft capital budget for the fiscal year 2025 set forth in Section 5.1(g) of the Company Disclosure Schedules, except
in each case, for capital expenditures, not to exceed $50 million in the aggregate, to repair damage resulting from insured casualty events
or required on an emergency basis for the safety of individuals, assets or the environment (so long as the Company provides Parent prior
notice of any such capital expenditures together with an estimate of the proposed scope of repairs and related costs to the extent that
it is reasonably practical under the circumstances); provided, however, that neither the MLP nor any of its Subsidiaries
shall make or authorize capital expenditures in a fiscal year in excess of 110% of the amount for such fiscal year set forth on Section 5.1(g)
of the Company Disclosure Schedules;
(h)
the Company will not, and will not permit any Subsidiary of the Company to, except as required under any Company Benefit Plan,
(i) increase the compensation or benefits of any employee with a title of vice president or above, except for increases in the ordinary
course of business consistent with past practice, (ii) (A) enter into, (B) adopt, or (C) extend or renew (or waive
or amend any performance or vesting criteria or accelerate funding under) any employment, change in control, severance, bonus, profit
sharing, retirement, restricted stock, stock option, deferred compensation or other director, consultant, executive or employee benefit
plan, policy, agreement or arrangement except as required by the terms of an agreement or arrangement existing on the date of this Agreement,
(iii) enter into any collective bargaining agreement or other agreement with any labor organization, works council, trade union,
labor association or other employee representative, (iv) take any action to accelerate the vesting, payment or funding of any compensation
or benefits to any employee with a title of vice president or above, (v) implement any facility closings or employee layoffs or reductions
in force that would trigger the notice requirements under the Worker Adjustment and Retraining Notification Act and any similar state
or local law (collectively, the “WARN Act”) or (vi) terminate the employment of any employee with a title of
vice president or above, other than a termination of employment for “cause”, or hire any employee with a title of vice president
or above (other than to replace any employee who has terminated his or her employment voluntarily or whose employment has terminated as
permitted herein);
(i)
the Company will not, and will not permit any of its Subsidiaries to, acquire (for cash or other assets) or agree to acquire by
merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial equity
or voting interest in, or by any other manner, any business or Person or division thereof or any other assets (including E&P Assets),
except that, the Company and its Subsidiaries shall be permitted to make (i) acquisitions pursuant to an agreement of the Company or any
of its Subsidiaries in effect on the date of this Agreement that is made available to Parent and listed on Section 5.1(j) of the Company
Disclosure Schedules, (ii) acquisitions (including of E&P Assets) for which the consideration is less than $50 million individually
or $100 million in the aggregate, including by lease, license or entry into joint ventures or partnership arrangements, (iii) acquisitions
of assets solely among the Company and its wholly owned Subsidiaries, or among the wholly owned Subsidiaries of the Company, or (iv) acquisitions
of assets solely among Opco and its wholly owned Subsidiaries, or among the wholly owned Subsidiaries of Opco (provided that, in
the case of this clause (iv) and the foregoing clause (iii), such acquisitions do not result in any adverse tax cost that is material
to the Company and its Subsidiaries (taken as a whole)); provided that any acquisitions included in the capital budgets referenced
in Section 5.1(g) shall not be subject to the restrictions set forth in this Section 5.1(i). For purposes of this Agreement,
the term “E&P Assets” means land and mineral interests or rights therein used for the exploration, development
and production of oil and gas and other hydrocarbons and related assets;
(j)
except as expressly permitted by Section 7.1, the Company will not, and will not permit any of its Subsidiaries to,
sell, lease, license, encumber (including by the grant of any option thereon) (other than by Permitted Liens) or otherwise dispose of
any material assets or material property (which shall include any sale of any capital stock of any Subsidiary of the Company), except
(i) pursuant to existing contracts or commitments, (ii) in the ordinary course of business consistent with past practice, (iii)
sales of or disposals of obsolete or worthless
assets at the end of their scheduled retirement, (iv) transfers
among the Company and its wholly owned Subsidiaries, or among the wholly owned Subsidiaries of the Company, (v) transfers among Opco and
its wholly owned Subsidiaries, or among the wholly owned Subsidiaries of Opco (provided that, in the case of this clause (v)
and the foregoing clause (iv), such transfers do not result in any adverse tax cost that is material to the Company and its Subsidiaries
(taken as a whole)), or (vi) any such disposals (including exchanges or swaps of E&P Assets) of assets in an amount not exceeding
$75 million individually or $150 million in the aggregate;
(k)
the Company will not, and will not permit any of its Subsidiaries to, incur any indebtedness for borrowed money, guarantee or assume
any such indebtedness of another Person, issue or sell warrants or other rights to acquire any debt securities of the Company or any of
its Subsidiaries, enter into any “keep well” or other agreement to maintain any financial condition of another Person, or
enter into any arrangement having the economic effect of any of the foregoing (other than (i) any such indebtedness among any Person
and its wholly-owned Subsidiaries, among any Person’s wholly-owned Subsidiaries, and guarantees thereof, (ii) borrowings under
that certain Credit Agreement, dated as of July 14, 2022, by and among the Company, Hess Overseas Finance Investments Centre Limited,
the other borrowing subsidiaries party thereto from time to time, the lenders and other parties thereto from time to time and JPMorgan
Chase Bank, N.A., as administrative agent (as amended or modified from time to time, the “Company Credit Agreement”),
the MLP Credit Agreement, or any other existing credit facilities of the Company or its Subsidiaries, in each case, in accordance with
the terms thereof as in effect on the date of this Agreement or, in each case, as amended, modified or supplemented in compliance with
the terms of this Agreement, (iii) any such indebtedness incurred to replace, renew, extend, refinance or refund any indebtedness
of the Company or any of its Subsidiaries, or (iv) any such other indebtedness or other obligations incurred in the ordinary course
of business consistent with past practice, that is not in excess of $100 million, in the aggregate; provided, however, that
in the case of each of clauses (ii), (iii) and (iv) such indebtedness either (A) is prepayable or redeemable
at the Closing or at any time (subject to customary notice requirements) without premium or penalty (other than customary eurocurrency
rate breakage) or (B) does not subject the Company or any of its Subsidiaries or, following the Closing, Parent or any of its Subsidiaries,
to any additional restrictions, limitations, covenants or obligations in any material respect (other than the obligations to make payment
on such indebtedness), in the case of this clause (B), to which the Company or any of its Subsidiaries, or Parent or any of
its Subsidiaries, as applicable, is not otherwise subject under the terms of any indebtedness outstanding as of the date of this Agreement);
(l)
the Company will not, and will not permit any of its Subsidiaries to, (i) modify, amend, terminate or waive any material rights
under any Material Contract or (ii) enter into any agreement that would constitute a Material Contract if entered into as of the
date of this Agreement, other than (x) as otherwise expressly contemplated by this Agreement and (y) in the ordinary course
of business consistent with past practice (but excluding any Specified Contracts, any Contract of the type set forth in Section 3.21(a)(iii),
Section 3.21(a)(v) or Section 3.21(a)(x)(B)or, notwithstanding anything herein to the contrary, any Contract of
the type set forth in Section 5.1(l) of the Company Disclosure Schedules with respect to any proposed amendment of such Contract that
would extend the duration or term thereof by twelve (12) months);
(m)
the Company will not, and will not permit any of its Subsidiaries to, settle or compromise any claim, demand, lawsuit or regulatory
proceeding (excluding any Tax Proceeding, which shall be governed by Section 5.1(q)), whether now pending or hereafter made
or brought, or waive, release or assign any rights or claims, in any such case (i) in an amount in excess of $50 million or (ii) that
imposes (x) any material non-monetary obligation to be performed by, or (y) material restriction imposed against, the Company
or any of its Subsidiaries following the Closing Date; provided, however, that, notwithstanding the foregoing, the Company
may not settle or propose to settle or compromise any Transaction Litigation except as expressly permitted by Section 7.14;
(n)
except for any such change which is not material or which is required by reason of a concurrent change in GAAP or applicable law,
the Company will not, and will not permit any Subsidiary of the Company to, change any method of financial accounting or financial accounting
practice (other than any change for Tax purposes) used by it;
(o)
the Company will not, and will not permit any Subsidiary of the Company to, (i) enter into any joint venture, partnership,
participation or other similar arrangement (other than in connection with acquisitions of E&P Assets that are permitted by Section
5.1(i)) or (ii) make any loan, capital contribution or advance to or investment in any other Person (other than the Company or
any wholly-owned Subsidiary of the Company and other than pursuant to capital calls required pursuant to the terms of existing equity
investments), in each case of (i) and (ii) that would be material to the Company, except for advances for reimbursable employee expenses
in the ordinary course of business consistent with past practice or advancements of expenses to directors and officers of the Company
or any Subsidiary of the Company pursuant to bona fide advancement provisions that are, in size and terms, consistent with past practice
and otherwise not in violation of the other restrictions set forth in clauses (a) through (w) of this Section 5.1 under the Company
Charter, Company By-Laws, equivalent governing documents of any Subsidiary of the Company or any indemnification agreement with any such
director or officer;
(p)
the Company will not, and will not permit any of its Subsidiaries to, take any action which would limit Parent’s or the Company’s
freedom to license, cross-license or otherwise dispose of any material Company Intellectual Property;
(q)
except as required by law, the Company will not, and will not permit any of its Subsidiaries to, (i) make (other than in the
ordinary course of business consistent with past practice), revoke or amend any material election relating to Taxes or change any of its
Tax accounting methods currently in effect, (ii) settle any Tax Proceeding or (iii) file any amended Tax Return, in each case,
if such action is reasonably likely to result in an increase to a Tax liability of the Company and/or its Subsidiaries that is material
to the Company and its Subsidiaries, taken as a whole;
(r)
except as contemplated by Section 7.1, the Company will not, and will not permit any of its Subsidiaries to, enter
into any agreement that limits in any material respect the ability of the Company or any Subsidiary of the Company, or would (or would
reasonably be expected to) limit in any material respect the ability of Parent or any Subsidiary of
Parent after the Effective Time, to compete in or conduct any line
of business or compete with any Person in any geographic area or during any period;
(s)
the Company will not, and will not permit any of its Subsidiaries to, enter into (or agree to enter into) any acquisition, joint
venture, exclusive arrangement or other similar arrangement, or any agreement to effect, or any letter of intent or similar document contemplating,
any acquisition (including by merger, consolidation or acquisition), joint venture, exclusive arrangement or other similar arrangement,
that would reasonably be expected to prevent, materially delay, materially interfere with or materially impede the consummation of the
Merger and the Transactions, including, any such action that would reasonably be expected to prevent, materially impede or materially
delay the ability of the parties to (y) obtain the expiration or termination of the waiting period under the HSR Act or any other applicable
antitrust laws, or (z) obtain any authorizations, consents, orders, and approvals of any governmental body, agency or authority, in each
case, necessary for the consummation of the Merger and the other Transactions;
(t)
the Company will not, and will not permit any of its Subsidiaries to, enter into any new derivatives or hedging instruments intended
to reduce or eliminate the risk of fluctuations in the price of Hydrocarbons, other than as set forth in Section 5.1(t) of the Company
Disclosure Schedules;
(u)
prior to declining to incur any capital commitment proposed by an operator with respect to any well or other E&P Asset in excess
of $25 million pursuant to any AFE, the Company and its Subsidiaries shall comply with Section 5.1(u) of the Company Disclosure Schedules;
(v)
notwithstanding anything to the contrary in this Agreement, the Company will not, and will not permit any of its Subsidiaries to,
take any of the actions set forth in Section 5.1(v) of the Company Disclosure Schedules; and
(w)
the Company will not, and will not permit any of its Subsidiaries to, agree or commit to do any of the foregoing.
Notwithstanding the foregoing, the obligations of the Company and
its Subsidiaries under this Section 5.1 to take an action or not to take an action shall not apply to the marketing and sale
of Hydrocarbons in the ordinary course of business consistent with past practice.
Section 5.2
Company Stockholder Meeting; Proxy Material.
(a)
Except as permitted by Section 5.2(b) below, the Board of Directors of the Company shall recommend adoption of this
Agreement by the Company’s stockholders, and unless permitted by Section 5.2(b), neither the Board of Directors of the
Company nor any committee thereof shall (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any
manner adverse to Parent, the approval of this Agreement, the Merger or the Company Recommendation (as defined in Section 5.2(f)
below) (any of the foregoing, a “Change in the Company Recommendation”), or (ii) approve or recommend, or propose
publicly to approve or recommend, any Acquisition Proposal. For purposes of this Agreement, a Change in the Company Recommendation shall
include (x) any approval or
recommendation (or public proposal to approve or recommend) of an
Acquisition Proposal by the Board of Directors of the Company or any committee thereof or (y) any failure by the Company to include
the Company Recommendation in the Company Proxy Statement.
(b)
(i)
The Board of Directors of the Company shall be permitted, in response to a Superior Proposal received after the date of this Agreement
and not resulting from a breach of Section 5.2(a), this Section 5.2(b) or Section 7.8, to not make
the Company Recommendation, or to withdraw or modify in a manner adverse to Parent the Company Recommendation, or to cause the Company
to terminate this Agreement pursuant to Section 9.1(f), in each case, only if and to the extent that all of the following
conditions are met: (A) the Company Stockholder Approval has not been obtained; (B) the Board of Directors of the Company determines
in good faith, after consulting with outside legal counsel, that making the Company Recommendation or failing to take such action would
be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties under applicable law; (C) before
taking any such action, the Company promptly gives Parent written notice advising Parent of the decision of the Board of Directors of
the Company to take such action (a “Superior Proposal Notice”), including the reasons therefor and specifying the material
terms and conditions of the applicable Acquisition Proposal and the identity of the Person making such Acquisition Proposal (and the Company
will also promptly give Parent such a notice with respect to any subsequent change in such proposal) and the Company has given Parent
at least four (4) Business Days (as modified, extended or continued by this Section 5.2(b)(i), the “Superior
Proposal Match Period”) after delivery of such notice to propose revisions to the terms of this Agreement (or to make another
proposal) in response to such Acquisition Proposal and during such period has made its representatives reasonably available to negotiate
with Parent (to the extent Parent wishes to negotiate) with respect to such proposed revisions or other proposal, if any (it being understood
and agreed that any amendment or modification (other than immaterial amendments or modifications) of such Acquisition Proposal shall require
a new notice period with a new Superior Proposal Match Period of three (3) Business Days); and (D) the Board of Directors of
the Company determines in good faith that such Acquisition Proposal constitutes a Superior Proposal (as defined in Section 7.8(b))
at the end of
such Superior Proposal Match Period after consultation with,
and taking into account the advice of, a financial advisor of nationally recognized reputation and outside legal counsel, as well as any
revisions to the terms of the Merger or this Agreement proposed by Parent in a manner that would form a binding contract if accepted by
the Company after being notified pursuant to this Section 5.2(b)(i).
(ii)
The Board of Directors of the Company shall be permitted, in response to an Intervening Event occurring after the date of this
Agreement, to not make the Company Recommendation or to withdraw or modify in a manner adverse to Parent the Company Recommendation, only
if and to the extent that all of the following conditions are met: (A) the Company Stockholder Approval has not been obtained; (B) the
Board of Directors of the Company determines in good faith, as a result of the Intervening Event, after consulting with outside legal
counsel, that making the Company Recommendation or failing to so withdraw or modify the Company Recommendation would be reasonably likely
to be inconsistent with the directors’ exercise of their fiduciary duties to stockholders under applicable law; (C) before
taking any such action, the Company promptly gives Parent written notice advising Parent of the decision of the Board of Directors of
the Company to take such action (an “Intervening Event Notice”), which notice will describe the Intervening Event in
reasonable detail, and the Company has given Parent at least four (4) Business Days (as modified, extended or continued by this Section 5.2(b)(ii),
the “Intervening Event Match Period”) after delivery of such notice to propose revisions to the terms of this Agreement
(or to make another proposal) in response to such Intervening Event and during such period has made its representatives reasonably available
to negotiate with Parent (to the extent Parent wishes to negotiate) with respect to such proposed revisions or other proposal, if any
(it being understood and agreed that any change in fact (other than an immaterial change) relating to such Intervening Event shall require
a new notice period with a new Intervening Event Match Period of three (3) Business Days); and (D) Parent does not make, within
the Intervening Event Match Period, a proposal in a manner that would form a binding contract if accepted by the Company that the Board
of Directors of the Company determines in good faith after consultation with, and taking into account the advice of, a financial advisor
of nationally recognized reputation and outside legal counsel, would obviate the need to not make or withdraw or modify the
Company Recommendation. For purposes of this Agreement,
“Intervening Event” means any event, development or change in circumstances that was not known to the Company’s
Board of Directors, or the consequences of which were not reasonably foreseeable as of the date of this Agreement, which event, change
or development becomes known to the Company’s Board of Directors prior to obtaining the Company Stockholder Approval; provided that
in no event shall the following events, changes or developments constitute an Intervening Event: (A) the receipt, existence or terms
of an Acquisition Proposal or any matter relating thereto or consequence thereof or (B) any change in the price or trading volume
of the Company Common Stock, the Parent Common Stock or any other securities of the Company, Parent or any of their respective Subsidiaries
(provided that the underlying causes of such changes may constitute, or be taken into account in determining whether there
has been, an Intervening Event).
(iii)
Except as permitted under Section 7.8, notwithstanding (x) any Change in the Company Recommendation, or (y) the making of
any Acquisition Proposal, until the termination of this Agreement (A) in no event shall the Company or any of its Subsidiaries (1) enter
into, or approve or recommend, or, except as set forth in Section 5.2(b), propose to approve or recommend, any letter of intent,
agreement in principle, merger agreement, option agreement, acquisition agreement or other agreement constituting or relating to an Acquisition
Proposal, (2) except as required by applicable law or Section 7.5, make, facilitate or provide information in connection with any SEC
or other regulatory filings in connection with the transactions contemplated by any Acquisition Proposal or (3) seek any third party consents
in connection with any transactions contemplated by any Acquisition Proposal and (B) the Company shall otherwise remain subject to the
terms of this Agreement, provided, however, for the avoidance of doubt, without limiting the Company’s right to terminate
this Agreement in the circumstances set forth in Section 9.1, a Change in the Company Recommendation shall not limit the Company’s
obligation to submit this Agreement to the stockholders of the Company for the purpose of obtaining the Company Stockholder Approval at
the Company Stockholder Meeting.
(c)
As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare, and Parent shall file with
the SEC, the Form S-4, in
which the Company Proxy Statement will be included as a prospectus.
Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities
Act, and for the Company Proxy Statement to be cleared by the SEC and its staff under the Exchange Act, in each case, as promptly as practicable
after such filing. Parent shall promptly comply with all reasonable requests from the Company for information regarding Parent or Merger
Subsidiary and required by applicable law for inclusion in the Company Proxy Statement and the Company shall promptly comply with all
reasonable requests from Parent for information regarding the Company and its Subsidiaries and required by applicable law for inclusion
in the Form S-4. Neither the Company (with respect to the Company Proxy Statement) nor Parent (with respect to the Form S-4) will file
such documents with the SEC without first providing the other party and its counsel a reasonable opportunity to review and comment thereon,
and the filing party will (i) include the reasonable additions, deletions or changes suggested by the other party or its counsel
to the extent relating to such party or their respective affiliates and (ii) consider in good faith all other such reasonable additions,
deletions or changes suggested by the other party or its counsel in connection therewith. Each of Parent and the Company shall use all
reasonable efforts to have the Company Proxy Statement and the Form S-4 cleared by the SEC and its staff as promptly as practicable after
such initial filing. Without limiting any other provision herein, the Form S-4 and the Company Proxy Statement will contain such information
and disclosure reasonably requested by either Parent or the Company so that the Form S-4 conforms in form and substance to the requirements
of the Securities Act and the Company Proxy Statement conforms in form and substance to the requirements of the Exchange Act. The Company
shall use its reasonable best efforts to, in consultation with Parent, (i) set a record date for the Company Stockholder Meeting,
which record date shall be prior to (or as promptly as reasonably practicable following) the effectiveness of the Form S-4, (ii) commence
a broker search pursuant to and in compliance with Section 14a-13 of the Exchange Act, and (iii) thereafter cause the Company
Proxy Statement to be mailed to holders of Company Common Stock as promptly as reasonably practicable after the Form S-4 is declared effective,
and, in any event, within three (3) Business Days after the Form S-4 is declared effective.
(d)
If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its Subsidiaries,
or with respect to information supplied by the Company for inclusion in the Form S-4 or the Company Proxy Statement, or (ii) any
event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Company
Proxy Statement, in either case, which event is required to be described in an amendment of or a supplement to the Form S-4 or
the Company Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and,
as required by law, disseminated to the stockholders of the Company.
(e)
Each of the Company and Parent shall (i) promptly (and in any case, no less than twenty-four (24) hours after a director or
senior executive officer of such party becomes aware) notify the other of the receipt of any comments from the SEC or its staff or any
other applicable government official and of any requests by the SEC or its staff or any other applicable government official for amendments
or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional
information and (ii) promptly (and in any case, no less than twenty-four (24) hours after a director or senior executive officer
of such party becomes aware) supply the other with copies of
all correspondence between the Company or any of its representatives,
or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other applicable government
official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond
to any comments of the SEC or its staff with respect to the Form S-4 and the Company Proxy Statement as promptly as reasonably
practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare
the Form S-4 and the Company Proxy Statement as expeditiously as practicable, and each of them shall provide promptly to the
other party any information that such party may obtain that could necessitate an amendment or supplement to any such document.
(f)
The Company shall, within forty (40) days after the commencement of the mailing of the Company Proxy Statement (or, if the Company’s
nationally recognized proxy solicitation firm advises forty (40) days after the commencement of the mailing of the Company Proxy Statement
is insufficient time to submit and obtain the Company Stockholder Approval, such later date to which Parent consents (such consent not
to be unreasonably withheld, conditioned or delayed)), duly call, give notice of, convene and hold a meeting of its stockholders (the
“Company Stockholder Meeting”) for the purpose of obtaining the Company Stockholder Approval, and the Board of Directors
of the Company shall recommend to the Company’s stockholders the adoption of this Agreement (the “Company Recommendation”)
and shall include such recommendation in the Company Proxy Statement; provided, however, that the Board of Directors of
the Company may fail to make such Company Recommendation or make a Change in the Company Recommendation if permitted by, and in accordance
with, Section 5.2(b). Without limiting the generality of the foregoing, but subject to Section 5.2(b) and the
Company’s rights to terminate this Agreement under the circumstances set forth in Section 9.1, the Company agrees that
its obligations pursuant to the first sentence of this Section 5.2(f) or its other obligations under this Section 5.2
shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or its stockholders or representatives
of any Acquisition Proposal. The Company shall use its reasonable best efforts to hold the Company Stockholder Meeting as soon as reasonably
practicable after the Form S-4 becomes effective and (subject to any Change in the Company Recommendation permitted by, and in
accordance with, Section 5.2(b)) to obtain the Company Stockholder Approval. The Company shall not, without the prior written
consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), adjourn, postpone or otherwise delay the Company
Stockholder Meeting; provided that the Company may, notwithstanding the foregoing, without the prior written consent of Parent,
adjourn or postpone the Company Stockholder Meeting (A) if, after consultation with Parent, the Company believes in good faith that
such adjournment or postponement is reasonably necessary to allow reasonable additional time to (1) solicit additional proxies necessary
to obtain the Company Stockholder Approval, or (2) distribute any supplement or amendment to the Company Proxy Statement the distribution
of which the Board of Directors of the Company has determined in good faith to be necessary under applicable law after consultation with,
and taking into account the advice of, outside legal counsel or (B) for an absence of a quorum, and the Company shall use its reasonable
best efforts to obtain such a quorum as promptly as practicable. Notwithstanding the foregoing, (x) the Company may not, without
the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), postpone the Company Stockholder
Meeting more than a total of three (3) times pursuant to clause (A)(1) or (B) of the immediately
preceding sentence, and no such postponement or adjournment pursuant
to clause (A)(1) or (B) of the immediately preceding sentence shall be, without the prior written consent of Parent
(such consent not to be unreasonably withheld, conditioned or delayed), for a period exceeding ten (10) Business Days and in no event
may the Company postpone the Company Stockholder Meeting without the written consent of Parent (such consent not to be unreasonably withheld,
conditioned or delayed) if doing so would require the setting of a new record date and (y) if the Company Stockholder Meeting is
postponed, the Company shall reconvene the Company Stockholder Meeting at the earliest practicable date on which the Board of Directors
reasonably expects to have sufficient affirmative votes to obtain the Company Stockholder Approval. Without the prior written consent
of Parent, the matters contemplated by the Company Stockholder Approval shall be the only matters (other than matters of procedure and
matters required by applicable law to be voted on by the Company’s stockholders in connection therewith) that the Company shall
propose to be voted on by the stockholders of the Company at the Company Stockholder Meeting. The Company shall otherwise coordinate and
cooperate with Parent with respect to the timing of the Company Stockholder Meeting and will otherwise comply with all legal requirements
applicable to the Company Stockholder Meeting. The Company shall provide updates to Parent with respect to the proxy solicitation for
the Company Stockholders Meeting (including interim results) as reasonably requested by Parent.
Section 5.3
Resignation of Company Directors. The Company shall use reasonable best efforts cause each director of the Company to deliver
a written resignation to the Company effective at the Effective Time.
Section 5.4
Other Actions. Subject to and in accordance with the provisions of Article VII, the Company and Parent shall
cooperate with each other to lift any injunctions or remove any other impediment to the consummation of the transactions contemplated
herein.
Section 5.5
Certain Actions. The Parties have agreed to the matters and agreements set forth in, and shall take any actions contemplated
by, Section 5.5 of the Company Disclosure Schedules.
Article
VI
COVENANTS OF PARENT
Parent agrees that:
Section 6.1
Conduct of Parent. From the date of this Agreement until the Effective Time, except with the prior written consent of the
Company (such consent not to be unreasonably withheld, conditioned or delayed), as expressly permitted or required by this Agreement,
as may be required by applicable law or as set forth in Section 6.1 of the Parent Disclosure Schedules, Parent and its Subsidiaries
shall conduct their business in a manner not involving the entry by Parent or its Subsidiaries into lines of businesses that are materially
different from the lines of businesses of Parent and its Subsidiaries on the date of this Agreement. Without limiting the generality of
the foregoing, except with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed),
as expressly permitted or required by this Agreement, as may be required by applicable law, or
as set forth in Section 6.1 of the Parent Disclosure Schedules,
from the date of this Agreement until the Effective Time, Parent shall not, nor shall Parent permit any of its Subsidiaries to:
(a)
adopt or propose any change in the certificate of incorporation or by-laws of Parent;
(b)
adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization of Parent;
(c)
(i) split, combine, subdivide or reclassify Parent’s outstanding shares of capital stock, or (ii) declare, set
aside or pay any dividend or other distribution payable in cash, stock or property with respect to Parent’s capital stock other
than regular quarterly cash dividends payable by Parent (including any increases thereof consistent with past practice or changes thereto
as described in Section 6.1(b) of the Parent Disclosure Schedules), and in any case not including any special dividend; provided,
however, that Parent shall not declare, set aside or pay any dividend except in accordance with, and the foregoing shall not restrict
any dividend declared and paid in accordance with, Section 7.11;
(d)
enter into (or agree to enter into) any acquisition, joint venture, exclusive arrangement or other similar arrangement, or any
agreement to effect, or any letter of intent or similar document contemplating, any acquisition (including by merger, consolidation or
acquisition), joint venture, exclusive arrangement or other similar arrangement, that would reasonably be expected to prevent, materially
delay, materially interfere with or materially impede the consummation of the Merger and the Transactions, including, any such action
that would reasonably be expected to prevent, materially impede or materially delay the ability of the parties to (y) obtain the expiration
or termination of the waiting period under the HSR Act or any other applicable antitrust laws, or (z) obtain any authorizations, consents,
orders, and approvals of any governmental body, agency or authority, in each case, necessary for the consummation of the Merger and the
other Transactions; or
(e)
agree or commit to do any of the foregoing.
Section 6.2
Obligations of Merger Subsidiary. Parent will take all action necessary to cause Merger Subsidiary to perform its obligations
under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement.
Section 6.3
Director and Officer Liability.
(a)
Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification
agreement, from the Effective Time and until the six (6) year anniversary of the Effective Time, Parent shall cause the Surviving
Corporation and each of its Subsidiaries, other than the MLP, Opco and their Subsidiaries, to indemnify, defend and hold harmless each
Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director,
officer or employee of the Company or of such Subsidiary, as applicable, or who acts as a fiduciary under any Company Benefit Plan or
is or was serving at the request of the Company or of such Subsidiary as a director, officer, employee or agent of another corporation,
partnership,
limited liability company, joint venture, employee benefit plan,
trust or other enterprise (including the MLP, Opco and their Subsidiaries) (the “Indemnified Persons”) against all
losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses),
liabilities or judgments or amounts that are paid in settlement of or incurred in connection with any threatened or actual claim (including
a claim of a violation of applicable law), action, audit, demand, suit, proceeding, investigation or other proceeding at law or in equity
or order or ruling, in each case whether civil, criminal, administrative, investigative or otherwise and whether or not such claim, action,
audit, demand, suit, proceeding, investigation or other proceeding or order or ruling results in a formal civil or criminal litigation
or regulatory action (“Proceeding”) to which such Indemnified Person is a party or is otherwise involved (including
as a witness) based, in whole or in part, on or arising, in whole or in part, out of or in connection with the fact that such Person is
or was a director, officer or employee of the Company or of such Subsidiary, a fiduciary under any Company Benefit Plan or is or was serving
at the request of the Company or of such Subsidiary as a director, officer, employee or agent of another corporation, partnership, limited
liability company, joint venture, employee benefit plan, trust or other enterprise (including the MLP, Opco and their Subsidiaries) or
by reason of anything done or not done by such Person in or in connection with any such capacity, whether pertaining to any act or omission
occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time
(“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole
or in part out of, or pertaining to, this Agreement or the Transactions, in each case to the fullest extent permitted under applicable
law (and Parent shall cause the Surviving Corporation or such Subsidiary to pay expenses incurred in advance of the final disposition
of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable law). Any Indemnified Person wishing
to claim indemnification or advancement of expenses under this Section 6.3(a), upon learning of any such Proceeding, shall
notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any obligations that it may have under this
Section 6.3(a) except to the extent such failure materially prejudices such party’s position with respect to such claims).
Parent will have the right, upon written notice to any applicable Indemnified Person, to assume the defense of any Proceeding in respect
of which indemnification is or would be sought hereunder employing counsel reasonably satisfactory to such Indemnified Person. Notwithstanding
anything to the contrary in this Section 6.3, an Indemnified Person shall only be entitled to the rights provided in this
Section 6.3 after providing a written undertaking by or on behalf of such Indemnified Person to repay such amounts if it is
ultimately determined under applicable law that such Indemnified Person is not entitled to be indemnified.
(b)
Parent and the Surviving Corporation shall not amend, repeal or otherwise modify any provision in the organizational documents
of the Surviving Corporation or its Subsidiaries other than the MLP, Opco and their Subsidiaries (and Parent shall not authorize or consent
to any such amendment, repeal or other modification of the organizational documents of the MLP, Opco or any of their Subsidiaries) in
any manner that would adversely affect the rights thereunder of any Indemnified Person to indemnification, exculpation or expense advancement,
except to the extent required by applicable law. Parent shall cause the Surviving Corporation and its Subsidiaries (other than the MLP,
Opco and their Subsidiaries) to fulfill and honor any indemnification, expense advancement or exculpation agreements between the
Company or any of such Subsidiaries and any of its or their directors,
officers or employees existing immediately prior to the Effective Time.
(c)
To the fullest extent permitted under applicable law, Parent shall cause the Surviving Corporation and each of its Subsidiaries
(other than the MLP, Opco and their Subsidiaries) to indemnify any Indemnified Person against all reasonable costs and expenses (including
reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in this Section 6.3,
relating to the enforcement of such Indemnified Person’s rights under this Section 6.3; provided, that, any such
Indemnified Person shall only be entitled to the rights of advancement provided in this Section 6.3(c) after providing a written
undertaking by or on behalf of such Indemnified Person to repay such amounts if it is ultimately determined under applicable law that
such Indemnified Person is not entitled to be indemnified.
(d)
Parent shall cause the Surviving Corporation to put and keep in place for a period of at least six (6) years from the Effective
Time, and Parent shall fully prepay no later than immediately prior to the Closing, “tail” insurance policies with a claims
reporting or discovery period of at least six (6) years from the Effective Time placed with insurance companies having the same or
better AM Best Financial rating as the Company’s current directors’ and officers’ liability and fiduciary liability
insurance companies with terms and conditions providing retentions, limits and other material terms no less favorable than the current
directors’ and officers’ liability insurance policies and fiduciary liability insurance policies maintained by the Company
with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that
Parent may elect in its sole discretion but shall not be required to, spend more than the amount set forth on Section 6.3
of the Company Disclosure Schedule (the “Cap Amount”) for the six (6) years of coverage under such “tail”
policy; provided, further, that if the cost of such insurance exceeds the Cap Amount, and Parent elects not to spend more
than the Cap Amount for such purpose, then Parent shall purchase as much coverage as is reasonably available for the Cap Amount.
(e)
In the event that Parent or the Surviving Corporation (i) consolidates with or merges into any other Person and shall not
be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of
its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of
the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.3. Parent and the
Surviving Corporation shall not sell, transfer, distribute or otherwise dispose of any of their assets or the assets of any Subsidiary
(whether by merger, consolidation, operation of law or otherwise) in a manner that would reasonably be expected to render Parent or the
Surviving Corporation unable to satisfy their obligations under this Section 6.3. The provisions of this Section 6.3
are intended to be for the benefit of, and shall be enforceable by, the parties and any and all Persons entitled to indemnification or
insurance coverage or expense advancement pursuant to this Section 6.3, and their heirs and representatives.
Section 6.4
Form S-4. Subject to the terms and conditions of this Agreement, Parent shall prepare and file with the SEC under
the Securities Act the Form S-4, and shall use its reasonable best efforts to cause the Form S-4 to be declared effective
by the SEC a sufficient time prior to the Company Stockholder Meeting to allow the Company to mail the Company
Proxy Statement to the Company stockholders, as required by the
rules and regulations of the SEC, prior to the Company Stockholder Meeting. Parent shall take any action required to be taken under foreign
or state securities or “blue sky” laws in connection with the issuance of Parent Common Stock in connection with the Merger.
Section 6.5
Stock Exchange Listing. Parent shall take all necessary action to cause the shares of Parent Common Stock to be issued in
connection with the Merger to be listed on the NYSE, subject to official notice of issuance.
Section 6.6
Employee Benefits.
(a)
From and after the Effective Time, Parent shall cause the Surviving Corporation to honor in accordance with their terms all benefits
and obligations, subject to Section 6.6(b) hereof, under the Company Benefit Plans, each as in effect on the date of this
Agreement (or as adopted or amended to the extent permitted by Section 5.1), to the extent that entitlements or rights, actual
or contingent (whether such entitlements or rights are vested as of the Effective Time or become vested or payable only upon the occurrence
of a further event) exist in respect thereof as of the Effective Time. Parent and the Company hereby agree that the consummation of the
Merger shall constitute a “Change in Control” for purpose of any employee arrangement and all other Company Benefit
Plans, pursuant to the terms of such plans in effect on the date of this Agreement (or as adopted or amended to the extent permitted by
Section 5.1). No provision of this Section 6.6(a) shall be construed as a limitation on the right of Parent to
amend or terminate any Company Benefit Plans which the Company would otherwise have under the terms of such Company Benefit Plan, and
no provision of this Section 6.6(a) shall be construed to create a right in any employee or beneficiary of such employee under
a Company Benefit Plan that such employee or beneficiary would not otherwise have under the terms of such plan.
(b)
For a period of one (1) year following the Effective Time, Parent shall continue to provide to each individual who is employed
by the Company or its Subsidiaries as of the Effective Time who remains employed with Parent or any Subsidiary of Parent (“Affected
Employees”), for so long as such Affected Employee remains employed by Parent or any Subsidiary of Parent, compensation and
employee benefits (i) pursuant to the Company’s or its applicable Subsidiary’s compensation (including, for the avoidance
of doubt, equity incentive compensation; provided that Parent may provide cash-based compensation of equivalent grant date value
in lieu of the grant date value of equity incentive compensation) and employee benefit plans, programs, policies and arrangements as provided
to such Affected Employees immediately prior to the Effective Time or (ii) pursuant to compensation and employee benefit plans, programs,
policies or arrangements maintained by Parent or any Subsidiary of Parent providing coverage and benefits, which, in the aggregate, are
no less favorable than those provided to employees of Parent in positions comparable to positions held by Affected Employees of Parent
and its Subsidiaries from time to time after the Effective Time. Notwithstanding the generality of the foregoing, for a period of one
(1) year following the Effective Time, Parent shall continue to provide to each Affected Employee, for so long as each Affected Employee
remains employed by Parent or any Subsidiary of Parent, (i) a base salary or wage rate, as applicable, and short-term cash incentive compensation
opportunity, in each case, no less favorable than those provided to the Affected Employee immediately prior to the
Effective Time; (ii) target long-term incentive compensation opportunities
that are no less favorable in the aggregate than those provided to the Affected Employee immediately before the Effective Time, provided
that in lieu of equity awards, Parent may substitute other forms of cash-based compensation having equivalent grant date value and equivalent
vesting terms; (iii) all other compensation and employee benefits (including any defined benefit pension and post-retirement welfare benefits)
that are no less favorable in the aggregate than were provided to the Affected Employee immediately before the Effective Time, and (iv)
severance payments and benefits under the plans identified on Section 6.6(b) of the Company Disclosure Schedules. In furtherance of the
short-term cash incentive compensation opportunity commitment in clause (i) of the immediately preceding sentence, if Parent modifies
or terminates the Company’s short-term cash incentive compensation plan for the year in which the Effective Time occurs in accordance
with the terms as of immediately prior to the Effective Time, the short-term cash incentive compensation awarded to an Affected Employee
in respect of the year in which the Closing occurs shall be determined on a basis no less favorable than that applicable to a similarly
situated employee of Parent and its Subsidiaries.
(c)
Notwithstanding anything contained herein to the contrary, Parent shall, or shall cause the Surviving Corporation to, (i) honor
the terms of those Company Employee Plans that are identified in Section 6.6(c) of
the Company Disclosure Schedule (the “Company Retiree Plans”) and provide each Affected Employee with the post-retirement
benefits that are provided under such Company Benefit Plans as of the date hereof (without adverse amendment); or (ii) allow each Affected
Employee to participate in, and receive benefits from, Parent’s applicable post-retirement health plans as they may be in effect
from time to time (the “Parent Retiree Plans”) upon their eligibility to enroll (without regard to whether such plans
are frozen as to eligibility or participation) taking into account the service crediting provisions in Section 6.6(d) and service
with Parent and its Affiliates after the Effective Time for all purposes, including for purposes of any employer subsidy; provided
that, if as of the Effective Time, an Affected Employee satisfies the eligibility requirements under the Company Retiree Plans, such Affected
Employee shall automatically satisfy the eligibility requirements under the Parent Retiree Plans as of the Effective Time; provided,
further, that, for the avoidance of doubt, following the commencement of participation by an Affected Employee in the Parent Retiree
Plans, such Affected Employee shall be subject to the terms and provisions of the Parent Retiree Plans in the same manner as the other
similarly situated employees of Parent and its Subsidiaries (including as a result of any amendments or termination thereof).
(d)
Parent will, or will cause the Surviving Corporation to, give each Affected Employee full credit for purposes of eligibility, vesting
and benefit accrual (including the Parent Retiree Plans but excluding benefit accruals under any defined benefit pension plan that, in
each case, is not a Company Benefit Plan) under any employee benefit plans or arrangements maintained by Parent or any Subsidiary of Parent
for such Affected Employee’s service with the Company or any Subsidiary (and their respective predecessor entities) to the same
extent recognized by the Company immediately prior to the Effective Time, except to the extent (i) that such credit would result in a
duplication of benefits or compensation for the same period of service or (ii) such employee benefit plan or arrangement is closed to
new participants (other than as specifically provided in Section 6.6(c)).
(e)
Parent will, or will cause the Surviving Corporation to, (i) waive all limitations as to preexisting conditions, exclusions
and waiting periods with respect to participation and coverage requirements applicable to each Affected Employee under any welfare benefit
plans that such Affected Employee may be eligible to participate in after the Effective Time, other than limitations or waiting periods
that are already in effect with respect to such Affected Employee and that have not been satisfied as of the Effective Time under any
welfare plan maintained for the Affected Employee immediately prior to the Effective Time, and (ii) for the first plan year of eligibility,
provide each Affected Employee with credit for any co-payments and deductibles paid prior to the commencement of participation in satisfying
any applicable deductible or out-of-pocket requirements under any welfare plans that such Affected Employee is eligible to participate
in after the Effective Time. References to “Affected Employee” in this Section 6.6(e) shall also refer to the
applicable Affected Employee’s eligible dependents.
(f)
If requested by the Parent in writing delivered to the Company not less than twenty (20) Business Days prior to the Closing
Date, the Company and each of its Subsidiaries shall adopt resolutions and take all such corporate action as is necessary to terminate
each 401(k) plan maintained, sponsored or contributed to by the Company or any of its Subsidiaries (collectively, the “Company
401(k) Plans”), in each case, contingent upon the occurrence of the Closing and effective as of the day immediately prior to
the Closing Date, and the Company shall provide Parent with evidence that such Company 401(k) Plans have been properly terminated, with
the form of such termination documents subject to the prior review of Parent. To the extent the Company 401(k) Plans are terminated pursuant
to Parent’s request, the Affected Employees shall be eligible to participate in a 401(k) plan maintained by Parent or one of its
Subsidiaries immediately following the Closing Date, and such Affected Employees shall be entitled to effect a direct rollover of any
eligible rollover distributions (as defined in Section 402(c)(4) of the Code), including any outstanding loans and Company Common
Stock, to such 401(k) plan maintained by Parent or its Subsidiaries.
(g)
Nothing contained in this Section 6.6, express or implied, shall (i) be construed to establish, amend, or modify
any benefit or compensation plan, program, agreement, contract, policy or arrangement, (ii) limit the ability of Parent or the Company
or any of their respective Subsidiaries or affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement,
contract, policy or arrangement at any time assumed, established, sponsored or maintained by any of them, except as permitted by the terms
of such plan, program, agreement, contract, policy or arrangement, (iii) create any third-party beneficiary rights or obligations
in any person (including any employee) or any right to employment or services or continued employment or service or to a particular term
or condition of employment or service with Parent or the Company or any of their respective Subsidiaries or affiliates or (iv) limit
the right of Parent or the Company (or any of their respective Subsidiaries or affiliates) to terminate the employment or service of any
employee or other service provider following the Closing at any time and for any or no reason.
(h)
Following the date of this Agreement, to the extent applicable and practicable, the Company shall use commercially reasonable
efforts to provide Parent with a list of employees of the Company or its Subsidiaries who would be affected by any facility closings
or employee layoffs or reductions in force that would trigger the
notice requirements under the WARN Act and that would occur between the date of this Agreement and the Closing Date.
Article
VII
COVENANTS OF PARENT AND THE COMPANY
The parties hereto agree that:
Section 7.1
Reasonable Best Efforts.
(a)
Subject to Section 5.2, Section 7.1(b) and Section 7.1(c), the Company and Parent shall each cooperate
with the other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to promptly (i) take
or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable under this Agreement and applicable
laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including,
without limitation, preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements,
registrations, submissions of information, applications and other documents and (ii) obtain as soon as practicable all approvals,
consents, registrations, permits, expirations or terminations of waiting periods, authorizations and other confirmations required to be
obtained from any third party or governmental body, agency, authority or official which are necessary, proper or advisable to consummate
the Merger and the other transactions contemplated by this Agreement. The Company and Parent shall submit the notifications required under
the HSR Act relating to the Merger within ten (10) Business Days of the date of this Agreement and shall prepare and file such other materials
as may be required under any applicable laws relating to the Merger in the jurisdictions set forth on Section 7.1(a) of the Company Disclosure
Schedules as promptly as practicable following the date of this Agreement. Prior to Closing, and subject to applicable laws relating to
the exchange of information, the Company and Parent shall each keep the other apprised of the status of matters relating to the completion
of the Merger and work cooperatively in connection with obtaining all required approvals or consents of any governmental agency, body,
authority or entity in connection with the Merger. The Company and Parent shall have the right to review in advance, and each will consult
the other to provide any necessary information with respect to all filings made with, or written materials submitted to, any third party
and/or any governmental agency, body, authority or entity in connection with the Merger and the other transactions contemplated by this
Agreement. The Company and Parent shall each promptly inform the other party, and if in writing, furnish the other party with copies of
(or, in the case of oral communications, advise the other party orally of) any communication from any governmental agency, body, authority
or entity regarding the Merger, and provide the other party with the opportunity to participate in any meeting, teleconference, or videoconference
with any governmental agency, body, authority or entity in respect of any filing, investigation or other inquiry in connection with the
Transactions; provided that notwithstanding anything to the contrary in this Section 7.1, Parent shall have the principal
responsibility, in consultation with the Company, for determining and implementing the strategy for obtaining any necessary clearance,
consents, approvals, or waiting period expirations or terminations pursuant to any (x) antitrust, competition or trade regulation law
that may be asserted by any governmental agency, body, authority or entity with respect to the
Merger (collectively, “Antitrust Laws”) or (y)
other applicable laws and shall do so in a manner reasonably designed to obtain any such clearance, consents, approvals or waiting period
expirations or terminations, as promptly as reasonably practicable and, in any event prior to the End Date; but provided, further,
that the foregoing shall not limit in any respect any party’s obligations under this Agreement. If either party receives a request
for additional information or documentary material from any governmental agency, body, authority or entity with respect to the Merger,
then such party will use its reasonable best efforts to make, or cause to be made, as promptly as practicable and after consultation with
the other party, an appropriate response in compliance with such request. Subject to applicable laws or any request made by any applicable
governmental agency, body, authority or entity (including the staff thereof), the Company and Parent shall each furnish to each other
copies of all correspondence, filings (other than the notifications required under the HSR Act) and written communications between it
and any such governmental agency, body, authority or entity with respect to this Agreement and the Merger, and furnish the other party
with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation
of filings or submissions of information to any such governmental agency, body, authority or entity; provided that materials provided
pursuant to this Section 7.1(a) may be redacted (x) to remove references concerning the valuation of the Company, (y) as
necessary to comply with contractual obligations, and (z) as necessary to address reasonable privilege or confidentiality concerns.
(b)
Without limiting Section 7.1(a), Parent and the Company shall, subject to Section 7.1(c), as applicable: (i) each
use its reasonable best efforts to avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain,
prevent or delay the Closing, on or before the End Date (as defined in Section 9.1(b)(i)), including without limitation defending
through litigation on the merits (including appeal) any claim asserted in any court by any Person; and (ii) each use its reasonable
best efforts to avoid or eliminate each and every impediment under any Antitrust Laws or any other applicable law so as to enable the
Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including (x) proposing, negotiating,
committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses,
product lines or assets of Parent, the Company and their respective Subsidiaries and (y) otherwise taking or committing to take actions
that after the Closing Date would limit Parent or its Subsidiaries’ freedom of action with respect to, or its or their ability to
retain, one or more of the businesses, product lines or assets of Parent, the Company and their respective Subsidiaries, in each case
as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other
order in any lawsuit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing. Parent and,
if requested by Parent, the Company shall agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action
that limits its freedom of action with respect to, or Parent or Parent’s Subsidiaries’ ability to retain, any of the businesses,
product lines or assets of Parent, the Company or any of their respective Subsidiaries; provided that any such action is conditioned
upon the consummation of the Merger. The Company agrees and acknowledges that, notwithstanding anything to the contrary in this Section 7.1
or any other provision of this Agreement, in connection with any filing or submission required, action to be taken or commitment to be
made by Parent, the Company or any of their respective Subsidiaries to consummate the Merger or other transactions contemplated by this
Agreement, neither the Company nor any of the Company’s Subsidiaries shall, without Parent’s prior written consent,
sell, divest, or dispose of any assets, exclusively license any
material Company Intellectual Property, commit to any sale, divestiture or disposal of businesses, product lines or assets of the Company
and the Company’s Subsidiaries or any exclusive license of material Company Intellectual Property or take any other action or commit
to take any action that would limit the Company’s, Parent’s or any of their respective Subsidiaries’ freedom of action
with respect to, or their ability to retain any of, their businesses, product lines or assets or material Company Intellectual Property;
provided that the foregoing shall not relieve any party of its obligations under this Agreement.
(c)
Notwithstanding anything else contained herein, neither the provisions of this Section 7.1 nor any other provision
of this Agreement shall be construed to require Parent or any of Parent’s Subsidiaries to undertake (or to request or authorize
the Company or any of the Company’s Subsidiaries to undertake and the Company shall not, and shall not permit any of its Subsidiaries
to take, without Parent’s prior written consent) any efforts or to take any action if such efforts or action would, or would reasonably
be expected to, result in a Substantial Detriment. “Substantial Detriment” shall mean any one of the following (1)
changes or effects which would, individually or in the aggregate (and after giving effect to any reasonably expected proceeds of any divestiture
or sale of assets, if applicable), result in, or be reasonably likely to result in, a material adverse effect on the financial condition,
business, assets or continuing results of operations of the Company and its Subsidiaries, taken as a whole, at or after the Effective
Time; provided that any requirement to divest or hold separate, or limit the operation of, any division, Subsidiary, interest,
business, product line, asset or property relating to the operations conducted by Parent and its Subsidiaries prior to the Effective Time
shall be deemed to constitute a Substantial Detriment if such action with respect to a comparable amount of assets or businesses of the
Company and its Subsidiaries, taken together with all other actions taken pursuant to this Section 7.1, would be reasonably likely,
in the aggregate, to have a material adverse effect on the financial condition, business, assets or continuing results of operations of
the Company and its Subsidiaries, taken as a whole or (2) notwithstanding anything to the contrary in this Section 7.1 (c) or elsewhere
in this Agreement (but subject to the immediately following proviso) a requirement for Parent or any of its Subsidiaries (including at
or after the Closing, the Company and any of its Subsidiaries) to provide prior notice to, or to obtain prior approval from any governmental
agency, body, authority or entity; provided, that subject to and as specified in Section 7.1(c) of the Company Disclosure
Schedules, Parent shall, if required by an applicable governmental agency, body, authority or entity, agree to any requirement to provide
prior notice to, or to obtain prior approval from, any governmental agency, body, authority or entity to the extent such requirement is
immaterial to Parent.
Section 7.2
Certain Filings. The Company and Parent shall cooperate with one another (a) in determining whether any action by or
in respect of, or filing with, any governmental body, agency, authority or official is required, or any actions, consents, approvals or
waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated
by this Agreement and (b) in seeking any such actions, consents, approvals or waivers or making any such filings, furnishing information
required in connection therewith or with the Company Proxy Statement or the Form S-4 and seeking timely to obtain any such actions,
consents, approvals or waivers.
Section 7.3
Access to Information. From the date of this Agreement until
the Effective Time, to the extent permitted by applicable law, the Company and Parent will, during normal business hours and upon reasonable
request, (a) give the other party and its counsel, financial advisors, auditors and other authorized representatives reasonable access
to the offices, properties, books and records of such party and its Subsidiaries, (b) furnish to the other party and its counsel,
financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons
may reasonably request, and (c) instruct its employees, counsel and financial advisors to reasonably cooperate with the other party
in its investigation of the business of the Company or Parent, as the case may be; provided that such investigation shall not unreasonably
disrupt the Company’s or Parent’s operations (it being understood and agreed that in no event shall any invasive or subsurface
investigation or testing of any environmental media be conducted without the prior consent of the Company, such consent to be within the
Company’s reasonable discretion); and provided, further, that no such investigation shall affect any representation
or warranty given by either party hereunder; provided, further, that the Company shall perform the actions set forth on Section 7.3 of
the Company Disclosure Schedules (subject to the terms of this Section 7.3). Notwithstanding the foregoing, neither the Company,
on the one hand, nor Parent, on the other hand, shall be required to provide any information which it reasonably believes it may not provide
to the other by reason of any applicable law, which constitutes information protected by attorney/client privilege, or which it is required
to keep confidential by reason of contract or agreement with any third Person. Each party shall use reasonable efforts to make reasonable
and appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply. All
information obtained by Parent or the Company pursuant to this Section 7.3 shall be kept confidential in accordance with,
and shall otherwise be subject to the terms of, the Confidentiality Agreement dated as of October 1, 2023 between Parent and the Company
(the “Confidentiality Agreement”).
Section 7.4
Tax Treatment.
(a)
Neither Parent nor the Company shall, nor shall they permit their respective Subsidiaries to, take any action that would prevent
or impede, or could reasonably be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the
meaning of Section 368(a) of the Code, and each of Parent and the Company shall, and shall cause their respective Subsidiaries to,
use its reasonable best efforts to cause the Merger to so qualify. Parent and the Company intend to report, and intend to cause their
respective Subsidiaries to report, the Merger for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a)
of the Code (the “Reorganization Treatment”); provided that none of Parent, the Company or any Subsidiary of
either thereof shall have any liability or obligation to any holder of Company Common Stock should the Merger fail to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code.
(b)
Each of Parent and the Company will, upon request by the other, use reasonable best efforts and reasonably cooperate with one another
in connection with (i) the issuance of the Tax Opinion of Tax Counsel (each as defined in Section 8.3(c)) and (ii) the issuance to Parent
or the Company of any other opinion of external counsel relating to the Reorganization Treatment (including if the SEC requires an opinion
regarding the Reorganization Treatment to be prepared and submitted in connection with the declaration of
effectiveness of the Form S-4, such opinion to be prepared by Tax
Counsel. In connection with the foregoing, each of Parent and the Company shall deliver to Tax Counsel, upon request therefore, certificates
(dated as of the necessary date and signed by an officer of the Company or Parent, as applicable), in form and substance consistent with
the applicable certificates set forth in Section 7.4(b) of the Company Disclosure Schedules (in the case of the Company) and Section 7.4(b)
of the Parent Disclosure Schedules (in the case of Parent). Each of Parent and the Company shall use its reasonable best efforts not to,
and not permit any affiliate to, take or cause to be taken any action that would cause to be untrue (or fail to take or cause not to be
taken any action which inaction would cause to be untrue) any of the representations and covenants made to counsel in the certificates
set forth in Section 7.4(b) of the Company Disclosure Schedules (in the case of the Company) and Section 7.4(b) of the Parent Disclosure
Schedules (in the case of Parent).
Section 7.5
Public Announcements. Parent and the Company will consult with each other before issuing any press release or making any
public statement with respect to this Agreement or the transactions contemplated hereby and shall not issue any such press release or
make any such public statement without the prior consent of the other party, which consent shall not be unreasonably withheld, conditioned
or delayed. Notwithstanding the foregoing, (a) any press release or public statement as may be required by applicable law or any
listing agreement with any national securities exchange may be issued prior to such consultation, if the party making the release or statement
has used its reasonable best efforts to consult with the other party, and (b) a party may, without such consultation, issue a press
release or make a public statement that is consistent with prior press releases issued or public statements made in compliance with this
Section 7.5 or any communication plan or strategy previously agreed to by Parent and the Company. For the avoidance of doubt,
nothing in this Section 7.5 shall prevent Parent or the Company from issuing any press release or making any public statement
in the ordinary course that does not relate specifically to this Agreement or the transactions contemplated hereby. Subject to Section
5.2, the restrictions in this Section 7.5 shall not apply to press releases or other public statements in connection with
an Acquisition Proposal or a Change in the Company Recommendation Change.
Section 7.6
Further Assurances. At and after the Effective Time, the officers and directors of the Surviving Corporation will be authorized
to execute and deliver, in the name and on behalf of the Company or Merger Subsidiary, any deeds, bills of sale, assignments or assurances
and to take any other actions and do any other things, in the name and on behalf of the Company or Merger Subsidiary, reasonably necessary
to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under
any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection
with, the Merger.
Section 7.7
Notices of Certain Events.
(a)
Each of the Company and Parent shall promptly notify the other party of:
(i)
any written notice or other written communication from any Person alleging that the
consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement;
(ii)
any notice or other written communication from any governmental agency, body, authority or entity in connection with the transactions
contemplated by this Agreement; and
(iii)
any actions, suits, claims, investigations or proceedings (A) commenced or (B) to the best of its knowledge, threatened
against, relating to or involving or otherwise affecting such party or any of its Subsidiaries which relate to the consummation of the
transactions contemplated by this Agreement;
provided, however, that no such notification (and
no other notification required to be given under any other Section of this Agreement) shall affect the representations, warranties, covenants
or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Section 7.8
No Solicitation.
(a)
The Company and its Subsidiaries will not, and the Company will direct and use its reasonable best efforts to cause its and its
Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other
representatives not to, directly or indirectly, take any action to solicit, initiate, or knowingly encourage or knowingly facilitate the
making of any Acquisition Proposal (including, without limitation, by granting any waiver under Section 203 of the DGCL) or any inquiry
with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to notify such Person of the
existence of the provisions of this Section 7.8), or disclose any nonpublic information or afford access to properties, books
or records to any Person that has made, or to the Company’s knowledge is considering making, any Acquisition Proposal, or approve
or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement,
option agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal, or propose publicly or agree to
do any of the foregoing relating to an Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors
of the Company from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or (ii) making
any disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors,
after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’
exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided that any such disclosure that relates
to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors
reaffirms in such disclosure the Company Recommendation. The Company shall be permitted to make any “stop, look and listen”
communication to the Company’s stockholders pursuant to Rule 14d-9(f) under the Exchange Act or complying with disclosure obligations
under Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal
shall not be a
Change in the Company Recommendation so long as any action taken
or statement made is consistent with this Section 7.8 (including the immediately foregoing sentence) and provided that any such
disclosure permitted by this sentence shall not permit the Company Board of Directors to make a Change in the Company Recommendation except
pursuant to Section 5.3. Notwithstanding anything to the contrary in this Agreement but subject to the first sentence of Section 7.8(b),
prior to (but not after) the date of the Company Stockholder Approval, the Company may, directly or indirectly through its advisors, agents
or other intermediaries, (A) furnish information and access, but only in response to a request for information or access, to any
Person, and its representatives (including sources of financing), making a bona fide, written Acquisition Proposal to the Board
of Directors of the Company after the date of this Agreement which was not obtained as a result of a breach of Section 5.2(a),
Section 5.2(b) or this Section 7.8 and (B) participate in discussions and negotiate with such Person or its
representatives concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A)
or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, (x) after receipt of the
advice of a financial advisor of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal constitutes
or could reasonably be expected to result in a Superior Proposal and (y) that failure to do so would be reasonably likely to be inconsistent
with its fiduciary duties to the Company’s stockholders under applicable law and (2) the Company receives from the Person making
such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) or (B) of this sentence,
an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms
of such Acquisition Proposal) in all material respects (i) no less favorable to the Company and (ii) no less restrictive to
the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement. The Company agrees that any material
non-public information provided to such Person that has not previously been provided to Parent shall be provided to Parent prior to or
substantially concurrently with the time it is provided to such Person. The Board of Directors of the Company shall not take any of the
actions referred to in the foregoing clauses (A) and (B) unless the Company shall have first delivered to Parent written
notice advising Parent that the Company intends to take such action; provided that only one such notice need be given with respect
to any specific Acquisition Proposal or amended or modified Acquisition Proposal.
(b)
In the event that on or after the date of this Agreement the Company receives an Acquisition Proposal, or any request for nonpublic
information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company
or any Subsidiary of the Company by any Person that has made, or has informed the Company it is considering making, an Acquisition Proposal,
the Company will (A) promptly (and in no event later than twenty-four (24) hours after a director or senior executive officer of
the Company becomes aware of such an Acquisition Proposal or request) notify (which notice shall be provided orally and in writing and
shall identify the Person making such Acquisition Proposal or request and set forth the material terms thereof) Parent thereof, (B) keep
Parent reasonably and promptly informed of the status and material terms of (including with respect to changes to the status or material
terms of) any such Acquisition Proposal or request, and (C) as promptly as practicable (but in no event later than twenty-four (24)
hours after a director or senior executive officer of the Company becomes aware of receipt) provide to Parent unredacted copies of all
material correspondence and material written materials (whether or not electronic) sent or provided to the Company or any of its Subsidiaries
that describes any terms or conditions
thereof, including any proposed transaction agreements (along with
all schedules and exhibits thereto and any financing commitments related thereto), as well as written summaries of any material oral communications
relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause
to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants,
attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations,
if any, that have taken place prior to the date of this Agreement with any Persons with respect to any Acquisition Proposal or the possibility
thereof, (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the nine (9) months
prior to the date of this Agreement in connection with its consideration of any Acquisition Proposal to return or destroy all confidential
information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all
physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company
or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality
or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition
Proposal and shall enforce the provisions of any such agreement; provided that the Company shall be permitted on a confidential
basis, upon written request by a relevant party thereto and without prior notice to Parent disclosing the party and the circumstances,
to release or waive any standstill obligations solely to the extent necessary to permit the party referred therein to submit an Acquisition
Proposal to the Board of Directors of the Company on a confidential basis. The Company shall provide written notice to Parent of any waiver
or release of any standstill by the Company.
For purposes of this Agreement, “Acquisition
Proposal” means any bona fide written offer or proposal for, or any bona fide written indication of interest in,
any (i) direct or indirect acquisition or purchase of any business or assets of the Company or any of its Subsidiaries that, individually
or in the aggregate, constitutes 20% or more of the net revenues, net income, EBITDA or assets of the Company and its Subsidiaries, taken
as a whole, (ii) direct or indirect acquisition or purchase of 20% or more of any class of equity securities of the Company or any
of its Subsidiaries whose business constitutes 20% or more of the net revenues, net income, EBITDA or assets of the Company and its Subsidiaries,
taken as a whole, (iii) tender offer or exchange offer that, if consummated, would result in any Person beneficially owning 20% or
more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 20% or more of the net revenues,
net income, EBITDA or assets of the Company and its Subsidiaries, taken as a whole, or (iv) merger, consolidation, business combination,
joint venture, partnership, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries
whose business constitutes 20% or more of the net revenue, net income, EBITDA or assets of the Company and its Subsidiaries, taken as
a whole, other than the transactions contemplated by this Agreement. For purposes of this Agreement, “Superior Proposal”
means any bona fide written Acquisition Proposal for or in respect of at least a majority of the outstanding shares of Company
Common Stock or the Company’s and its Subsidiaries’ assets on terms that the Board of Directors of the Company determines
in its good faith judgment (after consultation with, and taking into account the advice of, a financial advisor of nationally recognized
reputation and outside legal counsel, taking into account all the terms and conditions of such Acquisition Proposal, including likelihood
of
consummation on the terms proposed and all legal, financial, regulatory
and other aspects of such proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation, as well
as any revisions to the terms of the Merger or this Agreement proposed by Parent after being notified pursuant to Section 5.2(b)(i))
is more favorable to the Company’s stockholders than the Merger and the Transactions.
(c)
The Company agrees that it will take the necessary steps promptly to inform its Subsidiaries and its officers, directors, investment
bankers, consultants, attorneys, accountants, agents and other representatives of the obligations undertaken in this Section 7.8.
Section 7.9
Takeover Statutes. If any anti-takeover or similar statute or regulation is or may become applicable to the transactions
contemplated hereby, each of the parties and its Board of Directors shall grant such approvals and take all such actions as are legally
permissible so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby
and otherwise act to eliminate or minimize the effects of any such restriction, statute or regulation on the transactions contemplated
hereby.
Section 7.10
Section 16(b). Each of Parent and the Company shall take all such steps as may be reasonably necessary to cause the
transactions contemplated hereby and any other dispositions of equity securities of the Company (including derivative securities) or acquisitions
of equity securities of Parent (including derivative securities) in connection with this Agreement by each individual who (a) is
a director or officer of the Company or (b) at the Effective Time will become a director or officer of Parent, to be exempt under
Rule 16b-3 promulgated under the Exchange Act.
Section 7.11
Coordination of Quarterly Dividends. Parent and the Company shall each coordinate their record and payment dates for their
regular quarterly dividends to ensure that the holders of Company Common Stock shall not receive two dividends, or fail to receive one
dividend, in any quarter with respect to their Company Common Stock and the Parent Common Stock that such holders receive in exchange
therefor in the Merger. In addition, and without limiting the requirements of the previous sentence, the Company shall ensure that the
date on which any quarterly dividend is declared and the record date with respect to any quarterly dividend shall be no later than five
(5) Business Days following the one year anniversary of such dates for the corresponding quarter of the preceding year; provided,
however, that in the quarter in which the Closing occurs, if the record date of Parent’s quarterly dividend has been declared
and is a date prior to the Effective Time, then such quarterly dividend declaration date and record date of the Company shall occur no
later than such date as is necessary to ensure that holders of Company Common Stock receive a quarterly dividend in accordance with the
first sentence of this Section 7.11.
Section 7.12
Stock Exchange Delisting; Deregistration. Prior to the Effective Time, the Company shall cooperate with Parent and use its
reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper
or advisable on its part pursuant to applicable law and the rules and regulations of NYSE to cause (a) the delisting of the Company
Common Stock from NYSE as promptly as practicable
after the Effective Time and (b) the deregistration of the
Company Common Stock pursuant to the Exchange Act as promptly as practicable after such delisting.
Section 7.13
Treatment of Company Indebtedness.
(a)
The Company shall use reasonable best efforts, and shall cause its applicable Subsidiaries to use commercially reasonable efforts,
to deliver to Parent at least three (3) Business Days prior to the Closing Date a copy of a payoff letter (subject to the delivery
of funds as arranged by Parent) with respect to the Company Credit Agreement (the “Subject Indebtedness”) in customary
form, which payoff letter shall (i) indicate (1) the total amount required to be paid to fully satisfy all principal, interest, prepayment
premiums, penalties, breakage costs and any other monetary obligations then due and payable under the Subject Indebtedness as of the anticipated
Closing Date (and the daily accrual thereafter) (the “Payoff Amount”) and (2) all letters of credit outstanding under
the Company Credit Agreement (with respect to which the Company and the Parent shall reasonably cooperate to cause to be terminated, terminated
and replaced with new letters of credit or backstopped with new letters of credit on or after the Closing Date) and (ii) state that
upon receipt of the Payoff Amount under such payoff letter, the Subject Indebtedness and all related loan documents shall be terminated.
(b)
Parent will be permitted to, or request the Company to, commence and conduct, in accordance with the terms of the Indentures, one
or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the respective Indenture)
and/or any tender offers, or any exchange offers, and to conduct consent solicitations (each, a “Consent Solicitation”),
if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of
the outstanding aggregate principal amount of the Notes, provided that (A) any such Debt Offer is consummated using funds
provided by Parent and (B) Parent shall (1) prepare all necessary and appropriate documentation in connection with a Debt Offer
(the “Debt Offer Documents”), (2) provide the Company with a reasonable opportunity to review and comment on such
documentation, (3) include any proposed changes reasonably requested by the Company to the extent relating to the Company or its
Subsidiaries or to compliance with the applicable Indenture or applicable law and shall otherwise consider any such proposed changes in
good faith and (4) any such Debt Offer shall be conducted in compliance with the applicable Indenture and applicable law (including
SEC rules and regulations). The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence
of the Closing; provided, that the consummation of a Debt Offer with respect to the Notes shall not be a condition to Closing.
In connection with any Consent Solicitation, subject to the receipt of any requisite consents, the Company and its Subsidiaries shall
execute a supplemental indenture to each of the Indentures in accordance with each respective Indenture, amending the terms and provisions
of such Indenture as described in the Debt Offer Documents as reasonably requested by Parent, which supplemental indentures shall become
operative no earlier than the Effective Time, and shall use reasonable best efforts to cause the Trustees to enter into such supplemental
indentures prior to or substantially simultaneously with the Closing as determined by Parent. If reasonably requested by Parent, the Company
shall use its reasonable best efforts to cause its legal counsel to provide (A) all customary legal opinions required by the applicable
Indenture and (B) all customary legal opinions required by applicable laws (including SEC rules and regulations) solely as and to
the extent that such opinions relate to the Company and its Subsidiaries, in each case, in connection with the transactions contemplated
by this
Section 7.13(b) and to the extent such legal opinions
are required to be delivered prior to the Effective Time.
(c)
If requested by Parent, in lieu of or in addition to Parent or the Company commencing a Debt Offer for the Notes, the Company shall
use its reasonable best efforts, to the extent permitted by the Indentures, to (A) issue one or more notices of optional redemption
for all or a portion of the outstanding aggregate principal amount of the Notes (which may be delivered at Parent’s request in advance
of the Closing Date so long as the redemption of such notes is expressly conditioned upon the occurrence of the Closing), pursuant to
the redemption provisions of the respective Indenture and (B) take any other actions reasonably requested by Parent to facilitate
the satisfaction and discharge of the Notes pursuant to the satisfaction and discharge provisions of the respective Indenture and the
other provisions of each such Indenture applicable thereto, provided that (1) any such redemption or satisfaction and discharge
shall be consummated using funds provided by Parent and (2) consummation of any such redemption or satisfaction and discharge shall
not be a condition to Closing. If reasonably requested by Parent, the Company shall use its reasonable best efforts to cause its legal
counsel to provide all customary legal opinions required in connection with the redemptions contemplated by this Section 7.13(c)
to the extent such legal opinions are required to be delivered prior to the Effective Time.
(d)
Without limiting the foregoing, (i) the Company and Parent shall reasonably cooperate with each other with respect to customary
actions for transactions of this type that are reasonably requested by Parent to be taken by the Company or its Subsidiaries under the
Company Credit Agreement or any of the Company’s outstanding debt securities in connection with the Merger, including in connection
with a Debt Offer, the execution of any supplemental indentures described in the Debt Offer Documents and any notice of redemption; provided
that none of the Company, its Subsidiaries or their representatives shall be required to execute or, other than as provided in Section 7.13(b)
and Section 7.13(c), deliver, or agree to any change or modification of, any agreement, document, certificate or opinion that
(x) is effective prior to the Closing or that would be effective if the Closing does not occur, (y) is not accurate in light
of the facts and circumstances at the time delivered, or (z) would conflict with the terms of the Company’s existing indebtedness
or applicable law, (ii) the Company and Parent shall reasonably cooperate with each other with respect to actions that are reasonably
requested by Parent to be taken by the Company or its Subsidiaries under the Letter of Credit Documents, which actions shall become effective
on or after the Closing Date and (iii) Parent shall promptly reimburse the Company upon its written request for all reasonable and
documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the cooperation provided for in this
Section 7.13 and reimburse, indemnify and hold harmless the Company and its Subsidiaries and their respective representatives
from and against any and all liabilities and losses suffered or incurred by them in connection with the transactions contemplated by this
Section 7.13.
(e)
For purposes hereof:
(i)
“Notes” refers to (i) the 7.875% Notes due 2029 (the “2029 Notes”), governed by the
indenture, dated as of October 1, 1999 (as amended,
supplemented or modified from time to time, the “1999
Base Indenture”), between Amerada Hess Corporation and The Chase Manhattan Bank, as trustee (the “1999 Base Indenture
Trustee”), (ii) the 7.30% Notes due 2031 (the “2031 Notes”) governed by the 1999 Base Indenture, (iii) the
7.125% Notes due 2033 (the “2033 Notes”) governed by the 1999 Base Indenture, (iv) the 6.00% Notes due 2040 (the
“2040 Notes”) governed by the indenture, dated as of March 1, 2006 (as amended, supplemented or modified from
time to time, the “2006 Base Indenture”), between Amerada Hess Corporation and The Bank of New York Mellon, as
successor to JP Morgan Chase Bank, N.A., as trustee (the “2006 Base Indenture Trustee”), (v) the 5.60% Notes due
2041 (the “2041 Notes”) governed by the 2006 Base Indenture, (vi) the 3.50% Notes due 2024 (the “2024
Notes”) governed by the 2006 Base Indenture, (vii) the 4.30% Notes due 2027 (the “2027 Notes”) governed
by the 2006 Base Indenture, and (viii) the 5.80% Notes due 2047 (the “2047 Notes”) governed by the 2006 Base Indenture.
(ii)
“Indentures” refers to (i) the 1999 Base Indenture and (ii) the 2006 Base Indenture.
(iii)
“Trustees” refers to (i) the 1999 Base Indenture Trustee and (ii) the 2006 Base Indenture Trustee.
(iv)
“Letter of Credit Documents” refers to (i) the Continuing Agreement for Standby Letters of Credit, dated as
of January 11, 2023, between the Company and Sumitomo Mitsui Banking Corporation, (ii) Continuing Agreement for Standby Letters of Credit,
dated as of December 6, 2022, between the Company and The Bank of Nova Scotia, Houston Branch, (iii) the Amended and Restated Continuing
Agreement for Standby Letters of Credit, dated as of January 27, 2021, between the Company and Banco Bilbao Vizcaya Argentaria, S.A. (as
amended by Amendment No. 1, dated as of April 12, 2022), (iv) the Continuing Agreement
for Standby Letters of Credit, dated as of October 10, 2019, between the Company and The Toronto-Dominion Bank, New York Branch, (v) Continuing
Agreement for Standby Letters of Credit, dated as of December 20, 2017, between the Company and BNP Paribas,
(vi) Continuing Agreement for Standby Letters of Credit, dated as of June 24, 2016, between the Company and DNB ASA,
(vii) any outstanding letters of credit issued under the foregoing, (viii) any outstanding letters of credit issued by
Standard Charter at the request and for the account of the
Company, on behalf of the Company or any wholly-owned subsidiary of the Company and (ix) any other outstanding letters of credit issued
under the Company Credit Agreement set forth on Section 3.21(a)(iv) of the Company Disclosure
Schedules.
Section 7.14
Transaction Litigation. The Company shall promptly notify Parent, and Parent shall promptly notify the Company, of any stockholder
demands, litigations, arbitrations or other similar actions (including derivative claims) commencing against their respective directors
or officers relating to this Agreement or any of the transactions contemplated by this Agreement (collectively, the “Transaction
Litigation”) and shall keep each other informed regarding any Transaction Litigation. The Company and Parent shall cooperate
with the other in the defense or settlement of any Transaction Litigation and shall in good faith consult with each other on a regular
basis regarding the defense or settlement of such Transaction Litigation and shall give each other’s advice with respect to such
Transaction Litigation reasonable consideration. None of the Company, Parent or any of their respective Subsidiaries shall settle or offer
to settle any Transaction Litigation without the prior written consent of Parent or the Company, as applicable (such consent not to be
unreasonably withheld, conditioned or delayed).
Section 7.15
Parent Vote. Immediately following the execution and delivery of this Agreement, Parent will cause the sole stockholder
of Merger Subsidiary to execute and deliver to Merger Subsidiary a written consent adopting the Agreement in accordance with the DGCL.
Section 7.16
No Control of Other Party’s Business. Without in any way limiting any parties’ rights or obligations under this
Agreement, the parties acknowledge and agree that the restrictions set forth in this Agreement are not intended to give the Company, directly
or indirectly, the right to control or direct Parent’s or any of its Subsidiaries’ operations or give Parent, directly or
indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Effective Time.
Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement,
complete control and supervision over its respective operations.
Section 7.17
Applicability of Provisions to the MLP and Opco. Notwithstanding anything in this Agreement to the contrary, the obligations
of the Company and its Subsidiaries under this Agreement to take an action or not to take an action shall only apply with respect
to the MLP, Opco and their Subsidiaries to the extent (A) permitted by the organizational documents of the MLP, Opco and their Subsidiaries,
(B) the Company is authorized and empowered to bind the MLP, Opco and their Subsidiaries or has the direct or indirect contractual or
other legal authority to cause the MLP, Opco and their Subsidiaries to take such action or not take such action, as applicable, and (C)
such action or inaction would not breach (x) any contractual obligation or fiduciary duty to the MLP, Opco or any of their equity holders
or any contractual obligations or fiduciary duties of the MLP or Opco to their equity holders or (y) any contractual obligations in respect
of debt for borrowed money of the MLP, Opco or their Subsidiaries.
Article
VIII
CONDITIONS TO THE MERGER
Section 8.1
Conditions to the Obligations of Each Party. The obligations of the Company, Parent and Merger Subsidiary to consummate
the Merger are subject to the satisfaction (or, to the extent permitted by law, waiver) of the following conditions:
(a)
this Agreement shall have been adopted by the stockholders of the Company in accordance with the DGCL;
(b)
(i) any applicable waiting period under the HSR Act relating to the Merger shall have expired or been terminated; and (ii) any
applicable waiting period, clearance or affirmative approval of any governmental body, agency or authority or other condition set forth
on Section 8.1(b)(ii) of the Parent Disclosure Schedules has been obtained and any mandatory waiting period related thereto has expired;
(c)
no provision of any applicable law or regulation and no judgment, injunction, order or decree shall (i) prohibit or enjoin the
consummation of the Merger or (ii) reasonably be expected to result in a Substantial Detriment solely to the extent set forth in Section
8.1(c)(ii) of the Parent Disclosure Schedules;
(d)
the Form S-4 shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness
of the Form S-4 shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; and
(e)
the shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official
notice of issuance.
Section 8.2
Additional Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary
to consummate the Merger are subject to the satisfaction (or, to the extent permitted by law, waiver) of the following further conditions:
(a)
(i) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by
it as of or prior to the Closing Date and (ii) (A) the representations and warranties of the Company set forth in Section 3.11(b)
of this Agreement shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date
as though made at and as of the date of this Agreement and at and as of the Closing Date, (B) the representations and warranties
of the Company set forth in the first two sentences of Section 3.5 shall be true and correct at and as of the Closing Date as though
made at and as of the Closing Date except for De Minimis Inaccuracies, (C) the representations and warranties of the Company set
forth in Section 3.5 (other than the first two sentences thereof)shall be true and correct (disregarding all qualifications or
limitations as to “material”, “materiality” or “Company Material Adverse Effect”) in all material
respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, and (D) the
representations and warranties of the Company set forth in Article III of this
Agreement other than those described in the preceding clauses (A)-(C)
shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing
Date except where the failure to be so true and correct (disregarding all qualifications or limitations as to “material”,
“materiality” or “Company Material Adverse Effect”) would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect; provided, however, that, with respect to clauses (A), (B),
(C), and (D) above, representations and warranties that are made as of a particular date or period shall be true and correct
(consistent with the respective thresholds set forth in clause (A), (B), (C), or (D) as applicable)
only as of such date or period. For purposes of this Agreement, “De Minimis Inaccuracies” means any inaccuracies that
individually or in the aggregate are de minimis relative to the total fully diluted equity capitalization of the Company or Parent,
as the case may be.
(b)
Parent shall have received a certificate of the Company, executed on its behalf by an authorized officer of the Company, dated
the Closing Date, certifying that the conditions set forth in Section 8.2(a)(i) and Section 8.2(a)(ii) have been
satisfied.
Section 8.3
Additional Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject
to the satisfaction (or, to the extent permitted by law, waiver) of the following further conditions:
(a)
(i) Parent shall have performed in all material respects all of its obligations hereunder required to be performed by it as
of or prior to the Closing Date and (ii) (A) the representations and warranties of Parent and Merger Subsidiary set forth in
Section 4.10(b) of this Agreement shall be true and correct in all respects at and as of the Closing Date as though made at
and as of the date of this Agreement and at and as of the Closing Date, (B) the representations and warranties of Parent and Merger
Subsidiary set forth in the first two sentences of Section 4.5 shall be true and correct at and as of the date of this
Agreement and at and as of the Closing Date as though made at and as of the Closing Date except for De Minimis Inaccuracies, (C) the
representations and warranties of Parent and Merger Subsidiary set forth in Section 4.5 (other than the first two sentences
thereof) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date
as though made at and as of the Closing Date, and (D) the representations and warranties of Parent and Merger Subsidiary set forth
in Article IV of this Agreement other than those described in the preceding clauses (A)-(C) shall be true and
correct (disregarding all qualifications or limitations as to “material”, “materiality” or “Parent Material
Adverse Effect”) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing
Date, except where the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a
Parent Material Adverse Effect; provided, however, that, with respect to clauses (A), (B), (C) and
(D) above, representations and warranties that are made as of a particular date or period shall be true and correct (consistent
with the respective thresholds set forth in clause (A), (B), (C) or (D) as applicable) only as of
such date or period.
(b)
The Company shall have received a certificate of Parent, executed on its behalf by an authorized officer of Parent, dated the Closing
Date, certifying that the conditions set forth in Section 8.3(a)(i) and Section 8.3(a)(ii) have been satisfied.
(c)
The Company shall have received a written opinion of Wachtell, Lipton, Rosen & Katz, or, if Wachtell, Lipton, Rosen &
Katz is unable, or declines, to deliver such opinion, of such other tax counsel of nationally recognized standing as Parent and the Company
may mutually agree, such agreement not to be unreasonably withheld, conditioned or delayed (it being understood that Paul, Weiss, Rifkind,
Wharton & Garrison LLP is mutually agreed to be acceptable other tax counsel) (“Tax Counsel”), dated as of the
Closing Date, and in form and substance reasonably satisfactory to the Company, to the effect that, on the basis of facts, representations
and assumptions set forth or referred to in such opinion, the Merger will qualify as a “reorganization” within the meaning
of Section 368(a) of the Code (the “Tax Opinion”). In rendering the Tax Opinion, Tax Counsel shall be entitled to receive
and rely upon the certificates that shall be provided to it by each of the Company and Parent pursuant to Section 7.4(b).
Section 8.4
Frustration of Closing Conditions. None of the parties may rely, either as a basis for not consummating the Merger or for
terminating this Agreement, on the failure of any condition set forth in Section 8.1, Section 8.2 or Section 8.3,
as the case may be, to be satisfied if such failure was caused by such party’s breach in any material respect of any provision of
this Agreement.
Article
IX
TERMINATION
Section 9.1
Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time (notwithstanding
the obtaining of the Company Stockholder Approval):
(a)
by mutual written consent of the Company and Parent;
(b)
by either the Company or Parent:
(i)
if the Merger has not been consummated by April 18, 2024 (the “Initial End Date”, and as may be extended pursuant
to this Section 9.1(b)(i), the “End Date”); provided, however, that if (x) the Effective Time has not occurred
by such date by reason of nonsatisfaction of the condition set forth in Section 8.1(b) and (y) all other conditions in
Article VIII have theretofore been satisfied (other than those conditions that by their terms are to be satisfied at the Closing,
each of which is capable of being satisfied at the Closing) or (to the extent permitted by law) waived, the End Date will be October 22,
2024; provided, however, that if (x) the Effective Time has not occurred by such date by reason of nonsatisfaction
of the condition set forth in Section 8.1(b) and (y) all other conditions in Article VIII have theretofore
been satisfied (other than those conditions that by their terms are to be satisfied at the Closing,
each of which is capable of being satisfied at the Closing)
or (to the extent permitted by law) waived, the End Date will be April 22, 2025; provided, however, that if (x) the
Effective Time has not occurred by such date by reason of nonsatisfaction of the condition set forth in Section 8.1(b) and
(y) all other conditions in Article VIII have theretofore been satisfied (other than those conditions that by their terms
are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing) or (to the extent permitted by law) waived,
the End Date will be October 22, 2025; provided, further, that the right to terminate this Agreement under this Section 9.1(b)(i)
shall not be available to any party whose failure to fulfill any obligation under this Agreement has principally caused or resulted in
the failure of the Effective Time to occur on or before the End Date; or
(ii)
if the Company Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at a duly
held meeting of stockholders or any adjournment thereof;
(c)
by either the Company or Parent, if there shall be any law or regulation that makes consummation of the Merger illegal or otherwise
prohibited or if any judgment, injunction, order or decree enjoining Parent or the Company from consummating the Merger is entered and
such judgment, injunction, order or decree shall become final and nonappealable (any such law, regulation, judgment, injunction, order
or decree, a “Legal Restraint”); provided that the right to terminate this Agreement under this Section 9.1(c)
shall not be available to any party whose failure to fulfill any obligation under Section 7.1 hereof has principally caused
or resulted in the imposition of such Legal Restraint or the failure of such Legal Restraint to be resisted, resolved or lifted;
(d)
by Parent, prior to receipt of the Company Stockholder Approval, if there shall have been a Change in the Company Recommendation,
whether or not permitted by the terms hereof (or the Board of Directors of the Company or any committee thereof shall resolve to effect
a Change in the Company Recommendation);
(e)
by either Parent or the Company, if there shall have been a breach by the other of any of its representations, warranties, covenants
or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth
in Section 8.2(a) (in the case of a breach by the Company) or Section 8.3(a) (in the case of a breach by Parent),
and in any such case such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured within 30
days after written notice thereof shall have been received by the party alleged to be in breach; or
(f)
by the Company, at any time prior to receipt of the Company Stockholder Approval in order to enter into a definitive written agreement
providing for a Superior Proposal; provided that (i) the Company has received a Superior Proposal after the date
of this Agreement that did not result from a breach of Section 5.2(b)(i)
or Section 7.8, (ii) the Company has complied in all material respects with Section 5.2(b)(i) with respect
to such Superior Proposal, (iii) concurrently with, and as a condition to, any such termination the Company pays or causes to be
paid to Parent (or its designee) the Company Termination Fee pursuant to Section 10.5 and (iv) the Board of Directors
of the Company has authorized the Company to enter into, and the Company substantially concurrently enters into, a definitive written
agreement providing for such Superior Proposal (it being agreed that the Company may enter into such definitive written agreement concurrently
with any such termination).
The party desiring to terminate this Agreement pursuant to clause (b),
(c), (d), (e) or (f) of this Section 9.1 shall give written notice of such termination to the
other party in accordance with Section 10.1, specifying the provision hereof pursuant to which such termination is effected.
Section 9.2
Effect of Termination. If this Agreement is terminated pursuant to Section 9.1, this Agreement shall become
void and of no effect with no liability on the part of any party hereto, except that (a) the agreements contained in Section 7.13(d),
this Section 9.2, in Section 10.4 and Section 10.5 hereof and in the Confidentiality Agreement shall
survive the termination hereof and (b) no such termination shall relieve any party of any liability or damages resulting from any
material and intentional breach by that party of this Agreement.
Article
X
MISCELLANEOUS
Section 10.1
Notices. All notices, requests and other communications to any party hereunder shall be in writing (including email or similar
writing) and shall be given,
if to Parent or Merger Subsidiary, to: |
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Chevron Corporation |
6001 Bollinger Canyon Road |
San Ramon, California 94583 |
Attention: |
Mary A. Francis, Corporate Secretary and Chief Governance Officer |
Email: |
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with a copy to: |
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Paul, Weiss, Rifkind, Wharton & Garrison LLP |
1285 Avenue of the Americas |
New York, NY 10019 |
Attention: |
Scott A. Barshay |
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Kyle T. Seifried |
Email: |
sbarshay@paulweiss.com |
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kseifried@paulweiss.com |
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if to the Company, to: |
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Hess Corporation |
1185 Avenue of the Americas |
New York, NY 10036 |
Attn: |
Timothy B. Goodell, Executive Vice President, General Counsel |
Email: |
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with a copy to: |
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Wachtell, Lipton, Rosen & Katz |
51 West 52nd Street |
New York, NY 10019 |
Attn: |
Karessa L. Cain |
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Zachary S. Podolsky |
Email: |
KLCain@wlrk.com; |
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ZSPodolsky@wlrk.com |
or such other address or email as such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice, request or other communication shall be effective (a) if
given by email, when such email is transmitted to the email specified in this Section 10.1 and (i) a duplicate copy of
such email notice is promptly given by one of the other methods described in this Section 10.1 or (ii) the receiving
party delivers a written confirmation of receipt of such notice by email or any other method described in this Section 10.1
or (b) if given by any other means, when delivered at the address specified in this Section 10.1.
Section 10.2
Non-Survival of Representations and Warranties. The representations and warranties contained herein and in any certificate
or other writing delivered pursuant hereto shall not survive the Effective Time or any termination of this Agreement.
Section 10.3
Amendments; No Waivers.
(a)
Any provision of this Agreement (including the Exhibits and Schedules hereto) may be amended or waived prior to the Effective
Time if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company, Parent and Merger
Subsidiary, or in the case of a waiver, by the party against whom the waiver is to be effective; provided that after the adoption
of this Agreement by the stockholders of the Company, no such amendment or waiver shall, without the further approval of such stockholders,
alter or change (i) the amount or kind of consideration to be received in exchange for any shares of capital stock of the Company
or (ii) any term of the certificate of incorporation of Parent.
(b)
No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 10.4
Expenses. Except as otherwise specified in this Agreement,
including Section 10.5, or as otherwise agreed to in writing by the parties, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such cost or expense, except
that (i) those expenses incurred in connection with printing, mailing and filing the Form S-4, (ii) all filing fees paid in respect of
the filings under the HSR Act in connection with the Merger, and (iii) all reasonable and documented fees, costs and expenses incurred
in connection with any cooperation provided or action taken pursuant to Section 7.13 or in connection with any financing to
be obtained by Parent relating to the repayment or refinancing of any outstanding indebtedness of the Company pursuant to the terms of
Section 7.13 shall in each case be borne by Parent.
Section 10.5
Company Termination Fee.
(a)
Company Termination Fee. Any provision in this Agreement to the contrary notwithstanding, in the event that:
(i)
Parent shall terminate this Agreement pursuant to Section 9.1(d);
(ii)
(A) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(ii), (B) this Agreement is
terminated by the Company or Parent pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore
have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder
Approval shall not theretofore have been obtained, and in each case of clauses (A), (B) and (C), after the date of
this Agreement but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known
whether or not withdrawn, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A))
or (y) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C));
or
(iii)
the Company shall terminate this Agreement pursuant to Section 9.1(f),
then in any case as described in clause (i), (ii)
or (iii) the Company shall pay (or cause to be paid) to Parent (by wire transfer of immediately available funds), (x) in
the case described in clause (i) or (iii), a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars)
(the “Company Termination Fee”) not later than the date of termination of this Agreement, and (y) in the case
described in clause (ii), an amount equal to the Company Termination Fee not later than the earlier of the date an Acquisition
Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as, in
either case, such Acquisition Proposal is consummated or such definitive agreement is executed within
twelve (12) months after the date of termination of this Agreement;
provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition
Proposal to 20% shall instead refer to 50%. The Company acknowledges that the agreements contained in this Section 10.5(a)
are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into
this Agreement. Accordingly, if the Company fails to pay timely any amount due pursuant to this Section 10.5(a) and, in order
to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount payable to Parent pursuant
to this Section 10.5(a), the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees
and expenses) in connection with such suit, together with interest on the amount so payable at the rate on six (6)-month United States
Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) plus three percent (3%). Subject
in all cases to Section 9.2, in circumstances where the Company Termination Fee is paid in accordance with this Section 10.5(a),
Parent’s receipt of the Company Termination Fee from or on behalf of the Company shall be Parent’s and Merger Subsidiary’s
sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or
equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries and
any of their respective former, current or future direct or indirect equity holders, general or limited partners, controlling persons,
stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees for all losses and damages suffered as
a result of the failure of the Merger or the other Transactions to be consummated, for any breach or failure to perform hereunder or otherwise,
and upon payment of such amount, no such Person shall have any further liability or obligation relating to or arising out of this Agreement
or the Transactions.
Section 10.6
Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights
or obligations under this Agreement without the consent of the other parties hereto except that Merger Subsidiary may transfer or assign,
in whole or from time to time in part, to one or more of Parent’s controlled affiliates, its rights under this Agreement, but any
such transfer or assignment will not relieve Merger Subsidiary of its obligations hereunder.
Section 10.7
Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of Delaware, without
regard to principles of conflicts of law.
Section 10.8
Enforcement; Jurisdiction. The parties agree that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific terms or were otherwise breached, for which monetary damages would
not be an adequate remedy, and accordingly, each party agrees that the other party shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy
to which the parties are entitled at law or in equity. Any suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby or thereby may only be brought
in the Court of Chancery of the State of Delaware (or, only if such court declines to accept jurisdiction
over a particular matter, then in the United States District Court
for the District of Delaware or, if jurisdiction is not then available in the United States District Court for the District of Delaware
(but only in such event), then in any court sitting of the State of Delaware in New Castle County) and any appellate court from any of
such courts (in any case, the “Delaware Court”), and each of the parties hereby irrevocably consents to the exclusive
jurisdiction of the Delaware Courts in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any of
the Delaware Courts. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 10.1
shall be deemed effective service of process on such party when deemed given pursuant to Section 10.1; provided that
nothing herein shall affect the right of any party to serve process in any other manner permitted by applicable law.
Section 10.9
Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.10
Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. Electronic signatures (including those received
as a .pdf attachment to electronic mail) shall be treated as original signatures for all purposes of this Agreement. This Agreement shall
become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
Section 10.11
Entire Agreement. This Agreement (including the Exhibits and Schedules hereto), constitutes the entire agreement between
the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and thereof. Except for the provisions of (a) Articles I
and II (including, for the avoidance of doubt, the rights of the former holders of Company Common Stock to receive the Merger
Consideration), and (b) Section 6.3 (which from and after the Effective Time are intended for the benefit of, and shall
be enforceable by, the Persons referred to therein and by their respective heirs and representatives), no provision of this Agreement
or any other agreement contemplated hereby is intended to confer on any Person other than the parties hereto any rights or remedies.
Section 10.12
Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 10.13
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance
of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon
such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.
Section 10.14 Interpretation.
Unless the context otherwise requires, words describing the singular number shall include the plural and vice versa, words denoting
any gender shall include all genders, and words denoting natural persons shall include corporations, limited liability companies and
partnerships and vice versa. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference
shall be to an Article, Section, Exhibit or Schedule, as applicable, of this Agreement unless otherwise indicated. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.” The words “hereof,” “hereto,”
“hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “the date hereof”,
“the date of this Agreement” and words of similar import mean the day and year first set forth above in the preamble to
this Agreement. Unless the context otherwise requires, the terms “neither,” “nor,” “any,”
“either” and “or” are not exclusive. The word “extent” in the phrase “to the extent”
means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.” References to
“days” shall mean “calendar days” unless expressly stated otherwise. When used in this Agreement,
“Business Day” means any day other than (i) a Saturday or a Sunday, (ii) a day on which commercial banks in
New York City or the Secretary of State of the State of Delaware is authorized or required by law to be closed or
(iii) any day on which the SEC’s Electronic Data Gathering and Retrieval system is not open to accept filings. References
to “from” or “through” any date mean, unless otherwise specified, from and including or through and
including such date, respectively. Any reference in this Agreement to a date or time shall be deemed to be such date or time in the
City of New York, New York, U.S.A., unless otherwise specified. Except with respect to any disclosure in the Company
Disclosure Schedules or Parent Disclosure Schedules, any contract referred to herein means such contract, instrument or law as from
time to time amended, modified or supplemented. References to any statute shall be deemed to refer to such statute and any
rules or regulations promulgated thereunder. References to a person are also to its permitted successors and assigns. The words
“provided to”, “delivered” or “made available” and words of similar import refer to documents
which were delivered in person or electronically to the other party or its representatives prior to the execution of this Agreement
or, prior to 5:00 p.m. (New York City time) on the calendar day immediately preceding the date of this Agreement, posted to the
data site maintained by the disclosing party or its representatives in connection with the transactions contemplated hereby
(provided that, in the case of delivery via such data site, the other party had access to such documents in such data site
and such documents were not removed from such data site prior to the execution hereof) and, for the avoidance of doubt, includes any
documents filed or furnished by the disclosing party or its Subsidiaries with the SEC and publicly available on the SEC’s
Electronic Data Gathering and Retrieval system as an exhibit after December 31, 2020 and prior to the date that was three
calendar days prior to the execution of this Agreement. Each of the parties has participated in the drafting and negotiation of this
Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by
all the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any
of the provisions of this Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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CHEVRON CORPORATION |
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By: |
/s/ Michael K. Wirth |
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Name: |
Michael K. Wirth |
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Title: |
Chief Executive Officer |
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YANKEE MERGER SUB INC. |
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By: |
/s/ Bruce Niemeyer |
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Name: |
Bruce Niemeyer |
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Title: |
President |
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HESS CORPORATION |
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By: |
/s/ John B. Hess |
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Name: |
John B. Hess |
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Title: |
Chief Executive Officer |
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EXHIBIT 99.1
EXECUTION VERSION
VOTING AND SUPPORT
AGREEMENT
This Voting and Support
Agreement (this “Agreement”) is made and entered into as of October 22, 2023 (the “Agreement Date”),
by and among Chevron Corporation, a Delaware corporation (“Parent”), Hess Corporation, a Delaware corporation (the
“Company”), and John B. Hess (the “Stockholder”). Each of Parent, the Company and the Stockholder
is sometimes referred to as a “Party.”
RECITALS
A.
Concurrently with the execution and delivery of this Agreement, Parent, Yankee Merger Sub Inc., a Delaware corporation and direct
wholly-owned subsidiary of Parent (“Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger
(as it may be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”) that, among other
things and subject to the terms and conditions set forth therein, provides for the merger of Merger Sub with and into the Company, with
the Company being the surviving entity in such merger (the “Merger”).
B.
As of October 17, 2023 (the “Reference Date”), the Stockholder is the sole or shared record and/or “beneficial
owner” (within the meaning of Rule 13d-3 under the Exchange Act) of the shares of common stock, par value $1.00 per share, of the
Company (the “Common Stock”) described on Schedule A hereto (subject to the footnotes thereto), being all
of the shares of Common Stock of which the Stockholder is the sole or shared record and/or beneficial owner as of the Reference Date (the
“Owned Shares”, and the Owned Shares together with any additional shares of Common Stock as to which the Stockholder
may acquire sole or shared record and/or beneficial ownership after the Reference Date (including by purchase, gift, bequest or other
transfer, as a result of a stock split, reverse stock split, stock dividend or distribution or any change in Common Stock by reason of
any recapitalization, reorganization, combination, reclassification, exchange of shares or similar transaction, or upon exercise, vesting
or conversion of any securities (including any Company Options, Company RS Awards, Company PSU Awards or any other equity awards)), the
“Covered Shares”).
C.
In connection with Parent’s and Merger Sub’s entering into the Merger Agreement, the Stockholder has agreed to enter
into this Agreement with respect to such Covered Shares of which such Stockholder has sole or shared record and/or beneficial ownership
as described on Schedule A.
NOW, THEREFORE, in consideration
of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, do hereby agree
as follows:
1.
Definitions. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement. When used in this Agreement, the following terms shall have the meanings assigned to them in this Section
1.
1.1.
“Expiration Time” shall mean the earliest to occur of (a) the time that the Merger Agreement is adopted by stockholders
of the Company, (b) such date and time as the Merger Agreement is terminated pursuant to Article IX thereof, (c) the Effective Time, or
(d) any Change in the Company Recommendation.
1.2.
“Transfer” shall mean any direct or indirect (a) sale, assignment or other disposition of any Covered Shares,
(b) deposit of any Covered Shares into a voting trust, the entry into a voting agreement or arrangement (other than this Agreement) with
respect to any Covered Shares or the grant of any proxy or power of attorney (other than in furtherance of this Agreement) with respect
to any Covered Shares or (c) Contract to take any of the actions referred to in the foregoing clauses (a) or (b) above.
2.
Agreement to Not Transfer the Covered Shares.
2.1.
No Transfer of Covered Shares. Until the Expiration Time, the Stockholder agrees not to Transfer or cause the Transfer of
any Covered Shares other than with the prior written consent of Parent or in accordance with and subject to Section 2.2. Any Transfer
or attempted Transfer of any Covered Shares in violation of this Section 2.1 shall be null and void and of no effect whatsoever.
2.2.
Permitted Transfers. Notwithstanding anything herein to the contrary, (A) the Stockholder may Transfer any Covered Shares
obtained upon the exercise of Company Options that are expiring on a date that is no later than ninety (90) days after the exercise date
of such Company Options, (B) the Stockholders may Transfer Covered Shares in connection with the settlement or satisfaction of applicable
Tax withholding of Company PSU Awards, (C) the Stockholder may Transfer to third parties, in one or more transactions, Covered Shares
with aggregate fair value not to exceed $20,000,000 (twenty million dollars), and (D) the Stockholder may Transfer any or all Covered
Shares to (i) any affiliate of the Stockholder, or (ii) any family member (including a trust for such family member’s benefit) of
the Stockholder, in each case of clauses (D)(i) or (ii), only if the transferee of such Covered Shares agrees (or has agreed) to be bound
by the terms of this Agreement and executes and delivers to the Parties a written consent and joinder (if such transferee is not already
a party to this Agreement) memorializing such agreement, including the accuracy of the representations and warranties set forth in Section
6 herein mutatis mutandis with respect to such Transferee, prior to such Transfer. The Transfers permitted by any of the preceding
clauses (A), (B), (C) or (D) shall not limit, but shall be in addition to, any Transfers permitted by each such other clause. Shares of
Common Stock Transferred pursuant to clauses (A) through (C) of this Section 2.2 shall cease to be Covered Shares after such Transfer.
3.
Agreement to Vote the Covered Shares.
3.1.
Voting Agreement. Until the Expiration Time, at every meeting of the Company’s stockholders at which the following
matter is to be voted on (and at every adjournment or postponement thereof), the Stockholder shall vote (including via proxy) or cause
to be voted all of such Stockholder’s Covered Shares (including, if applicable, causing the holder of record on any applicable record
date to vote (including via proxy) all of such Stockholder’s Covered Shares) (i) in favor of adoption of the Merger Agreement, (ii)
in favor of the approval of any proposal to adjourn the meeting to a later date if there are not sufficient affirmative votes (in person
or by proxy) to obtain the Company Stockholder Approval, and (iii) against any Acquisition Proposal or approval of any other proposal,
transaction, agreement or action, without regard to the terms of such proposal, transaction, agreement or action, made in opposition to
or in competition with, or that would reasonably be expected to prevent, materially delay or materially impede the consummation of, the
Merger Agreement, the Merger or any other transactions contemplated thereby by the Initial End Date (the “Covered Proposals”).
3.2.
Quorum. Until the Expiration Time, at every meeting of the Company’s stockholders (and at every adjournment or postponement
thereof), the Stockholder shall be represented in person or by proxy at such meeting (or cause the holders of record of its Covered Shares
on any applicable record date to be represented in person or by proxy at such meeting) in order for the Covered Shares to be counted as
present for purposes of establishing a quorum.
4.
Fiduciary Duties; Legal Obligations. The Stockholder is entering into this Agreement solely in its capacity as the sole
or shared record holder and/or beneficial owner of the applicable Covered Shares. Nothing in this Agreement shall in any way limit or
affect any actions taken by the Stockholder in his capacity as a director or officer of the Company or any of its affiliates or from complying
with his fiduciary duties or other legal obligations while acting in such capacity as a director or officer of the Company or any of its
affiliates.
5.
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent that:
5.1.
Due Authority. The Stockholder has the full power and capacity to make, enter into and carry out the terms of this Agreement.
This Agreement has been duly and validly executed and delivered by the Stockholder and, assuming due authorization, execution and delivery
by Parent, constitutes a valid and binding obligation of the Stockholder enforceable against it in accordance with its terms, subject
to Creditors’ Rights.
5.2.
Ownership of the Covered Shares. (a) The Stockholder has, as of the Reference Date, sole and/or shared beneficial and/or
record ownership of such Stockholder’s Covered Shares as described on Schedule A hereto, free and clear of any and all Liens,
other than those (i) created by this Agreement, (ii) arising under applicable securities laws or (iii) as disclosed on Schedule
A hereto, and (b) the Stockholder has the voting power described on Schedule A over the Covered Shares which is sufficient
for the Stockholder to comply with the terms of this Agreement.
5.3.
No Conflict; Consents.
a.
The execution and delivery of this Agreement by the Stockholder does not, and the performance by the Stockholder of its obligations
under this Agreement and the compliance by the Stockholder with any provisions hereof does not and will not: (a) conflict with or violate
any laws applicable to the Stockholder, or (b) result in any breach of or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a Lien on any of the Covered Shares beneficially owned by the Stockholder pursuant to any Contract or obligation
to which the Stockholder is a party or by which the Stockholder is subject.
b.
No consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations
promulgated under the Exchange Act, filing with, any governmental authority, is required by or with respect to the Stockholder in connection
with the execution and delivery of this Agreement or the consummation by the Stockholder of the transactions contemplated hereby.
c.
The Stockholder (i) has not entered into, and shall not enter into, at any time prior to the Expiration Time, any voting agreement,
voting trust or similar arrangement with respect to any of the Covered Shares and (ii) has not granted, and shall not grant, at any time
prior to the Expiration Time, a proxy or power of attorney with respect to any of the Covered Shares, in either case, that is in effect
as of the date of this Agreement and conflicts with the Stockholder’s obligations pursuant to this Agreement with respect to the
Covered Shares.
5.4.
Absence of Litigation. As of the date of this Agreement, there is no action, suit, investigation or proceeding pending or
threatened against or otherwise affecting, the Stockholder or the Covered Shares that would or would be reasonably be expected to impair
the ability of the Stockholder to perform his obligations hereunder or to consummate the transactions contemplated hereby.
5.5.
Reliance by Parent. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance
upon the Stockholder’s execution, and delivery of this Agreement and the performance of the Stockholder’s obligations hereunder.
6.
Representations and Warranties of Parent. Parent hereby represents and warrants to the Stockholder that:
6.1.
Due Authority. Parent has the full power and capacity to make, enter into and carry out the terms of this Agreement. Parent
is duly organized, validly existing and in good standing in accordance with the laws of its jurisdiction of formation. The execution and
delivery of this Agreement, the performance of Parent’s obligations hereunder, and the consummation of the transactions contemplated
hereby has been validly authorized, and no other consents or authorizations are required to give effect to this Agreement or the transactions
contemplated by this Agreement. This Agreement has been duly and
validly executed and delivered by Parent and
constitutes a valid and binding obligation of Parent enforceable against it in accordance with its terms, subject to Creditors’
Rights.
6.2.
No Conflict; Consents.
a.
The execution and delivery of this Agreement by Parent does not, and the performance by Parent of its obligations under this Agreement
and the compliance by Parent with the provisions hereof do not and will not: (a) conflict with or violate any laws applicable to Parent,
or (b) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, pursuant to any Contract or obligation
to which Parent is a party or by which Parent is subject.
b.
No consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations
promulgated under the Exchange Act, filing with, any governmental authority, is required by or with respect to Parent in connection with
the execution and delivery of this Agreement or the consummation by Parent of the transactions contemplated hereby.
7.
Miscellaneous.
7.1.
No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent or the Company any direct or
indirect ownership or incidence of ownership of or with respect to the Covered Shares. Parent shall have no authority to direct the Stockholder
in the voting or disposition of any of the Covered Shares, except as otherwise provided herein.
7.2.
Documentation and Information. The Stockholder consents to and authorizes the publication and disclosure by Parent and the
Company of the Stockholder’s identity and beneficial and/or record ownership of the Covered Shares (consistent with the information
set forth in Schedule A), and the terms of this Agreement (including, for the avoidance of doubt, the disclosure of this Agreement), in
any press release, the Company Proxy Statement, the Form S-4 and any other disclosure document required by applicable law in connection
with the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement.
7.3.
Further Assurances. The Stockholder agrees, from time to time, at the reasonable request of Parent and without further consideration,
to execute and deliver such additional documents and take all such further action as may be reasonable required to consummate and make
effective the transactions contemplated by this Agreement.
7.4.
Notices. All notices, requests and other communications to any party hereunder shall be in writing (including email or similar
writing) and shall be given:
a.
if to the Stockholder, to the address for notice set forth on Schedule A hereto.
b.
if to Parent, to:
Chevron Corporation |
6001 Bollinger Canyon Road |
San Ramon, California 94583 |
Attention: |
Mary A. Francis, Corporate Secretary and Chief Governance Officer |
Email: |
|
|
|
|
|
with a copy (which shall not constitute notice) to: |
|
|
Paul, Weiss, Rifkind, Wharton & Garrison LLP |
1285 Avenue of the Americas |
New York, NY 10019 |
Attention: |
Scott A. Barshay |
|
Kyle T. Seifried |
Email: |
sbarshay@paulweiss.com |
|
kseifried@paulweiss.com |
c.
if to Company, to:
Hess Corporation |
1185 Avenue of the Americas |
New York, NY 10036 |
Attn: |
Timothy B. Goodell, Executive Vice President, General Counsel |
Email: |
|
|
|
with a copy (which shall not constitute notice) to: |
|
Wachtell, Lipton, Rosen & Katz |
51 West 52nd Street |
New York, NY 10019 |
Attention: |
Karessa L. Cain |
|
Zachary S. Podolsky |
Email: |
KLCain@wlrk.com |
|
ZSPodolsky@wlrk.com |
or such other address or email as such party
may hereafter specify for the purpose by notice to the other parties hereto. Each such notice, request or other communication shall be
effective (a) if given by email, when such email is transmitted to the email specified in this Section 7.4 and (i) a duplicate
copy of such email notice is promptly given by one of the other methods described in this Section 7.4 or (ii) the receiving party
delivers a written confirmation of receipt of such notice by email or any other method described in this Section 7.4 or (b) if
given by any other means, when delivered at the address specified in this Section 7.4.
7.5.
Amendments; No Waivers. This Agreement may not be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by all of the Parties. Any provision of this Agreement may be waived if, and only if, such waiver
is in writing and signed by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law.
7.6.
Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement
shall be paid by the party incurring such cost or expense.
7.7.
Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties other than as provided by Section 2.2.
7.8.
Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of Delaware, without
regard to principles of conflicts of law.
7.9.
Enforcement; Jurisdiction. The parties agree that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific terms or were otherwise breached, for which monetary damages would
not be an adequate remedy, and accordingly, each party agrees that the other party shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any other remedy to which the parties are entitled at law or in
equity. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby or thereby may only be brought in the Court of Chancery of the State of Delaware
(or, only if such court declines to accept jurisdiction over a particular matter, then in the United States District Court for the District
of Delaware or, if jurisdiction is not then available in the United States District Court for the District of Delaware (but only in such
event), then in any court sitting of the State of Delaware in New Castle County) and any appellate court from any of such courts (in any
case, the “Delaware Court”), and each of the parties hereby irrevocably consents to the exclusive jurisdiction of the
Delaware Courts in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any of the Delaware Courts.
Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 7.4 shall be
deemed effective service of process on such party when deemed given pursuant to Section 7.4; provided that nothing
herein shall affect the right of any party to serve process in any other manner permitted by applicable law
7.10.
Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.11.
Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. Electronic signatures (including those received
as a .pdf attachment to electronic mail) shall be treated as original signatures for all purposes of this Agreement. This Agreement shall
become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
7.12.
Entire Agreement; No Third Party Beneficiaries. This Agreement (including the Schedule hereto), together with the Merger
Agreement, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all
prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof.
No provision of this Agreement or any other agreement contemplated hereby is intended to confer on any Person other than the parties hereto
any rights or remedies.
7.13.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent
possible.
7.14.
Interpretation. Unless the context otherwise requires, words describing the singular number shall include the plural and
vice versa, words denoting any gender shall include all genders, and words denoting natural persons shall include corporations, limited
liability companies and partnerships and vice versa. When a reference is made in this Agreement to a Section or Schedule, such reference
shall be to a Section or Schedule, as applicable, of this Agreement unless otherwise indicated. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.”
The words “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words
of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
The words “the date hereof”, “the date of this Agreement” and words of similar import mean the day and year first
set forth above in the preamble to this Agreement. Unless the context otherwise requires, the terms “neither,” “nor,”
“any,” “either” and “or” are not exclusive. The word “extent” in the phrase “to
the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.” Each
of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation
arises, this Agreement must be construed as if it is drafted by all the parties, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.
7.15.
Non-survival of Representations and Warranties. None of the representations and warranties in this Agreement or in any schedule,
instrument or other document delivered pursuant to this Agreement shall survive the Effective Time or the termination of this Agreement.
7.16.
Termination. This Agreement shall automatically terminate without further action by any of the parties hereto and shall
have no further force or effect as of the Expiration Time; provided that the provisions of Sections 7.4 to 7.16 shall
survive any such termination.
[Signature page follows]
IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
CHEVRON CORPORATION |
|
|
|
|
|
|
By: |
/s/ Frank W. Mount |
|
|
|
Name: Frank W. Mount |
|
|
|
Title: Vice President of Business Development |
|
|
|
|
|
|
HESS CORPORATION |
|
|
|
|
|
|
By: |
/s/ Timothy Goodell |
|
|
|
Name: Timothy Goodell |
|
|
|
Title: General Counsel & Corporate Secretary |
|
|
|
|
|
|
|
|
|
|
/s/ John B. Hess |
|
|
John B. Hess |
|
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