Exhibit 10.2
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "Agreement") is entered into as of
June 28, 2002, by and among Veritas DGC Land Inc. ("Veritas"), Xxxxx X. Xxxxxx,
X.X. Xxxxxx, Xxxxxx X. Xxxxx and Guardian Energy Management Corp. (each, a
"Major Stockholder" and collectively, the "Major Stockholders").
W I T N E S S E T H:
WHEREAS, on April 15, 1999, Xxxxxx Exploration Company (the "Company")
issued a promissory note (the "Note") to Veritas in the principal amount of four
million six hundred ninety-six thousand forty and 60/100 dollars
($4,696,040.60), representing the outstanding balance due Veritas for services
provided to the Company in 1998 and 1999;
WHEREAS, also on April 15, 1999, the Company issued a warrant (the
"Warrant") to Veritas that enables Veritas to purchase shares of the Company's
common stock, par value $0.01 per share (the "Common Stock"), in lieu of
receiving cash payments for the interest obligations under the Note, according
to the terms set forth in the Warrant;
WHEREAS, also on April 15, 1999, the Company and Veritas entered into a
Registration Rights Agreement ("Registration Rights Agreement"), under which the
Company agreed to register shares of Common Stock issued upon exercise of the
Warrant as set forth therein;
WHEREAS, as of July 18, 2000, the Company and Veritas agreed to amend
certain terms of the Note, the Warrant and the Registration Rights Agreement
pursuant to that certain First Amendment to Promissory Note, Warrant and
Registration Rights Agreement (the "First Amendment");
WHEREAS, the Company and Veritas have again agreed to amend certain
terms of the Note and the Warrant by entering into a Second Amendment to
Promissory Note and Warrant of even date herewith (the "Second Amendment"); and
WHEREAS, in order to induce Veritas to enter into the Second Amendment,
which provides a substantial benefit to the Major Stockholders, the Major
Stockholders have agreed, among other things, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. In addition to the other defined terms set forth
in this Agreement, the following terms shall have the following meanings:
"Common Stock" has the meaning set forth in the recitals of
this Agreement.
"Common Stock Equivalents" means, without duplication with any
other Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or indebtedness,
or other rights, exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock, securities convertible into or exchangeable for
Common Stock, or securities with voting rights substantially similar to Common
Stock, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"Fully-Diluted Common Stock" means, at any time, the then
outstanding Common Stock plus (without duplication) all shares of Common Stock
issuable, whether at such time or upon the passage of time or the occurrence of
future events, upon the exercise, conversion, or exchange of all then
outstanding Common Stock Equivalents.
"Lien" means any of the following: mortgage; lien (statutory
or other); other security agreement, arrangement or interest; hypothecation,
pledge or other deposit arrangement; assignment; charge; levy; executory
seizure; attachment; garnishment; encumbrance (including any easement,
exception, reservation or limitation, right of way, and the like); conditional
sale, title retention, voting agreement or other similar agreement, arrangement,
device or restriction; preemptive or similar right; the filing of any financial
statement under the Uniform Commercial Code or comparable law of any
jurisdiction; restriction or sale, transfer, assignment, disposition or other
alienation; or any option, equity, claim or right of or obligation to, any other
Person, of whatever kind and character.
"Major Stockholder" and "Major Stockholders" have the meanings
set forth in the opening paragraph of this Agreement.
"Participation Offer" has the meaning provided in Section 2.1
hereof.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"Sale" means any bona fide sale of Securities held, directly
or indirectly, by any person to any unaffiliated third party (other than a sale
effected by means of a broker-dealer transaction on any market or stock exchange
on which the Common Stock is then listed).
"Second Amendment" has the meaning set forth in the recitals
of this Agreement.
"Security" or "Securities" means shares of Common Stock and
Common Stock Equivalents, whether owned on the date hereof or hereafter
acquired.
"Selling Major Stockholder" has the meaning set forth in
Section 2.1 hereof.
ARTICLE 2
TRANSFERS OF SECURITIES
2.1. Tag-Along Rights. In the event that a Major Stockholder (a
"Selling Major Stockholder") desires to effect a Sale, then at least 20 days
prior to the closing of such Sale, such Selling Major Stockholder shall make a
written offer (the "Participation Offer") to Veritas to include in such proposed
sale a portion of its Securities which represents the same percentage of
Veritas' total Fully-Diluted Common Stock as the Securities being sold by such
Selling Major Stockholder represents of its total Fully-Diluted Common Stock;
provided, that in applying this Section 2.1, Veritas' rights hereunder shall
first be applied to Securities of Veritas that are the same as the Securities
being sold by the Selling Major Stockholder and then, to the extent that like
Securities are insufficient to satisfy Veritas' rights hereunder, to the other
Securities of Veritas (after exercise, exchange or conversion into shares of
Common Stock, which exercise, exchange or conversion may be conditioned by
Veritas on the closing of the proposed sale). Veritas shall bear its own costs
and expenses in connection with any sale of Securities pursuant to this Section
2.1.
2.2 Terms of Participation Offer. The Participation Offer shall
describe the terms and conditions of the proposed sale and shall be conditioned
upon (i) the consummation of the transactions contemplated in the Participation
Offer with the transferee named therein, and (ii) Veritas' timely execution and
delivery of all agreements and other documents as any Selling Major Stockholder
is required to execute and deliver in connection with such sale; provided that
Veritas shall not be required to make any representations or warranties in
connection with such sale other than representations and warranties as to (A)
Veritas' ownership of its Securities to be sold free and clear of all Liens, (B)
Veritas' power and authority to effect such sale and (C) such matters pertaining
to compliance with securities laws as the transferee may reasonably require. If
Veritas shall accept the Participation Offer by written notice to the Selling
Major Stockholder within ten days after the date on which Veritas receives the
Participation Offer, such Selling Major Stockholder shall reduce, to the extent
necessary, the number of Securities it otherwise would have sold in the proposed
Sale so as to permit Veritas to sell the number of Securities that it is
entitled to sell under Section 2.1, and the Selling Major Stockholder and
Veritas shall sell the Securities specified in the Participation Offer to the
proposed transferee in accordance with the terms of such Sale as set forth in
the Participation Offer. The purchase price payable for Securities of Veritas
that are not the same as the Securities being sold by the Major Stockholder
shall be adjusted, as appropriate, to reflect the comparative economics of such
Securities.
2.3 Certain Events Not Deemed Sales. In no event shall any exchange,
reclassification, or other conversion of shares into any cash, securities, or
other property pursuant to a merger or consolidation of the Company or any
Subsidiary with, or any sale or transfer by the Company or any Subsidiary of all
or substantially all its assets to, any person constitute a Sale by any Major
Stockholder for purposes of Section 2.1 or Section 2.2, provided that the
underlying consideration or the right to participate is extended to all holders
of Common Stock and Common Stock Equivalents. In addition, Sections 2.1 and
Section 2.2 hereof shall not apply to any transfer, sale, or disposition of
shares of Securities solely among Major Stockholders, their immediate family
members or their affiliates; provided that any such transferee shall first agree
to be bound by the terms of this Agreement as a Major Shareholder and shall
execute and deliver a written acknowledgement thereof to Veritas prior to any
such transfer.
ARTICLE 3
MISCELLANEOUS
3.1 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
(i) on the date of delivery, if hand delivered, (ii) on the date of confirmed
receipt, if telecopied, (iii) three days after the date of mailing, if mailed by
registered or certified mail, return receipt requested, and (iv) one business
day after the date of sending, if sent overnight by Federal Express or other
recognized overnight courier. All such notices and communications shall be sent
or delivered to the following parties at the addresses or to the fax numbers
specified on the signature page hereof.
3.2 Governing Law. THIS STOCKHOLDERS AGREEMENT AND THE RIGHTS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, INTERPRETED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS (EXCLUSIVE OF THE CHOICE OF LAW PROVISIONS THEREOF) OF
THE STATE OF TEXAS AS TO ALL MATTERS, INCLUDING, BUT NOT LIMITED TO, MATTERS OF
VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES.
3.3 Exclusive Jurisdiction; Attorneys' Fees. Each party to this
Agreement hereby irrevocably agrees that any legal proceeding in respect of this
Agreement may be brought in the district courts of Xxxxxx County, Texas, or in
the United States District Court for the Southern District of Texas, Houston
Division (collectively, the "Specified Courts"). Each party to this Agreement
hereby irrevocably submits to the nonexclusive jurisdiction of the state and
federal courts of the State of Texas. Each party to this Agreement hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any Specified
Court, and hereby further irrevocably waives any claims that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Each party to this Agreement further irrevocably consents to
the service of process out of any of the Specified Courts in any such suit,
action or proceeding by the mailing of copies thereof by certified mail, return
receipt requested, postage prepaid, to such party. The prevailing party or
parties shall be entitled to recover from the non-prevailing party or parties
their reasonable attorneys' fees and costs, including those on appeal.
3.4 Successors and Assigns. This Stockholders Agreement shall be
binding upon the Veritas and each Major Stockholder, and their respective
successors and assigns.
3.5 Counterparts; Facsimile Signatures. This Stockholders Agreement may
be executed in multiple counterparts, each of which shall be deemed an original
Stockholders Agreement, and all of which shall constitute one Stockholders
Agreement between each of the parties hereto, notwithstanding that all of the
parties are not signatories to the original or the same counterpart. Each party
hereto hereby acknowledges the effectiveness of, and agrees to accept, facsimile
signatures of any other party hereto for purposes of executing this Stockholders
Agreement; provided, however, that any party executing this Stockholders
Agreement by facsimile signature shall provide the other parties with the number
of original signatures pages as
such other parties may specify as soon as is practicable following a request for
same by the such other parties.
3.6 Severability. In case any provision in this Stockholders Agreement
shall be held invalid, illegal or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby.
3.7 No Waivers; Amendments. Any provision of this Stockholders
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the parties.
3.8 Construction. The headings in this Stockholders Agreement are
inserted for convenience and identification only and are not intended to
describe, interpret, define or limit the scope, extent, or intent of this
Stockholders Agreement or any provision hereof. Whenever the context requires,
the gender of all words used in this Stockholders Agreement shall include the
masculine, feminine, and neuter, and the number of all words shall include the
singular and the plural.
3.9 Transfer Taxes. Each party will pay all respective sales, transfer
and documentary taxes, if any, payable in connection with any conveyances,
assignments, transfers and deliveries to be made by it pursuant to this
Stockholders Agreement.
3.10 Third Parties. No third party beneficiary rights are granted by
the parties pursuant to this Stockholders Agreement.
3.11 Expiration. This Agreement shall expire on the transfer, sale or
other disposition by Veritas of all of the Common Stock underlying the Warrant.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHERE, the parties hereto have executed this Amendment as of
the date first written above.
VERITAS DGC LAND, INC.
By:
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Name:
Title:
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Xxxxx X. Xxxxxx
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X. X. Xxxxxx
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Xxxxxx X. Xxxxx
GUARDIAN ENERGY MANAGEMENT CORP.
By:
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Name:
Title:
