EXHIBIT 3
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "AGREEMENT") is made and entered into
as of September 21, 1999, by and among Inland Resources Inc. a Washington
corporation (the "ISSUER"), Inland Holdings LLC, a California limited liability
company ("HOLDINGS"), Trust Company of the West, a California trust company, as
Sub-Custodian for Mellon Bank for the benefit of Account No. CPFF 873-3032
("FUND V"), Joint Energy Development Investments II Limited Partnership, a
Delaware limited partnership ("JEDI" and together with Holdings, the
"PURCHASERS"), Pengo Securities Corp., a Delaware corporation ("PENGO"), ▇▇▇▇▇
Energy Partnership, a New York general partnership ("SEP"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(collectively, the "▇▇▇▇▇ INDIVIDUALS") (Pengo, SEP, and the ▇▇▇▇▇ Individuals,
together with any of their respective affiliates, the "▇▇▇▇▇ GROUP").
W I T N E S S E T H
WHEREAS, Fund V is presently the holder of $75 million in principal
amount of junior secured debt of Inland Production Company, a Texas corporation
("IPC"), plus accrued interest to the date hereof (principal and interest
collectively, the "FUND V DEBT"), and TCW Portfolio No. 1555 DR V Sub-Custody
Partnership, L.P., a California limited partnership ("PORTFOLIO," and
collectively with Fund V, "TCW") is presently the holder of warrants (the
"PORTFOLIO WARRANTS") to purchase 158,512 shares of the common stock, par value
$.001 per share of Issuer. The Portfolio Warrants together with the Fund V Debt
shall be referred to collectively herein as the "TCW SECURITIES;"
WHEREAS, JEDI is presently the holder of 100,000 shares of the
Issuer's Series C Preferred Stock, plus accumulated dividends to the date hereof
(the "JEDI SECURITIES");
WHEREAS, Fund V and Portfolio are members of Holdings;
WHEREAS, the Issuer, IPC, Inland Refining, Inc., a Utah corporation
("REFINING," and together with Issuer and IPC, the "COMPANIES"), TCW and
Purchasers have entered into an exchange agreement dated as of even date
herewith (the "EXCHANGE AGREEMENT") whereby (i) TCW will exchange its entire
interest in the TCW Securities for the issuance to Holdings of (a) 10,757,747
shares of the Issuers' Series D Preferred Stock, (b) 5,882,901 shares of the
Issuer's Series Z Preferred Stock and (c) 11,642,949 shares of the Issuer's
Common Stock (such Series D Preferred Stock, Series Z Preferred Stock and Common
Stock of the Issuer issued to Holdings, the "HOLDINGS NEW SECURITIES"); and (ii)
JEDI will exchange its entire interest in the JEDI Securities for (a) 121,973
shares of the Issuer's Series E Preferred Stock and (b) 2,920,975 shares of the
Issuer's Common Stock (such Series E Preferred Stock and Common Stock issued to
JEDI, the "JEDI NEW SECURITIES")(such transactions hereinafter referred to as
the "EXCHANGE");
WHEREAS, the ▇▇▇▇▇ Group presently owns 5,712,071 shares (the "▇▇▇▇▇
SECURITIES") of the Issuer's Common Stock, as more specifically set forth on
Schedule A hereto (such schedule setting forth the record holder and number of
such shares held by each member of the ▇▇▇▇▇ Group);
WHEREAS, the execution of this Agreement is a condition to closing of
the Exchange Agreement;
WHEREAS, the Purchasers and the ▇▇▇▇▇ Group desire to make certain
provisions regarding, among other things, the election of directors of the
Issuer and the transfer of shares of capital stock of the Issuer:
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, conditions and agreements contained
herein, the parties hereto, intending to be legally bound by the terms hereof,
agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the following
meanings, and capitalized terms not otherwise defined herein have the meaning
assigned to them in the Exchange Agreement as in effect on the date hereof.
"Affiliate" or "affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by or under direct
or indirect common control with such Person and, with respect to Fund V or
Holdings, any Person which is a participant in or beneficiary of Fund V or
Holdings, respectively. For purposes of this definition, "control" shall mean
the power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise); the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing. Notwithstanding the foregoing, no
individual shall be deemed to be an affiliate of a corporation solely by reason
of his or her being an officer or director of such corporation.
"AUTHORIZATION" shall have the meaning ascribed to such term in
SECTION 5.2.
"BOARD" or "BOARD OF DIRECTORS" shall mean the board of directors of
the Issuer.
"COMMISSION" shall mean the United States Securities and Exchange
Commission or any other similar or successor agency of the federal government
administering the Securities Act.
"COMMON STOCK" shall mean the common stock of the Issuer, par value
$.001 per share.
"DRAG-ALONG PARTY" or "DRAG-ALONG PARTIES" shall have the meaning
ascribed to such terms in SECTION 4.
"DRAG-ALONG SHARES" shall have the meaning ascribed to such term in
SECTION 4.
"DRAG-ALONG TRANSACTION" shall have the meaning ascribed to such term
in SECTION 4.
"HOLDER" or "HOLDERS" shall mean the Persons holding any of the
Securities, either individually or collectively as the context so requires.
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"MERGER TRANSACTION" shall mean any merger, reorganization or other
business combination with any Person other than an affiliate where the Issuer is
not the surviving entity.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof.
"PREFERRED STOCK" shall mean the authorized preferred stock of the
Issuer, par value $.001 per share.
"PREFERRED STOCK DESIGNATION" shall mean the amendment to the Articles
of Incorporation of the Issuer, setting forth the terms of the Series D
Preferred Stock, Series E Preferred Stock and Series Z Preferred Stock.
"PRIOR AGREEMENTS" means those certain registration rights agreements
set forth on Schedule 3.2(c) to the Exchange Agreement and that certain Tagalong
Agreement dated July 21, 1997 by and among JEDI and Pengo.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any successor Federal statute and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"SECURITIES" shall mean the ▇▇▇▇▇ Securities, the JEDI New Securities,
the Holdings New Securities and any shares of Common Stock issued upon
conversion of the Series Z Preferred Stock.
"SERIES C PREFERRED STOCK" shall mean the Series C Cumulative
Convertible Preferred Stock of the Issuer, par value $.001 per share.
"SERIES D PREFERRED STOCK" shall mean the Series D Redeemable
Preferred Stock of the Issuer, par value $.001 per share.
"SERIES E PREFERRED STOCK" shall mean the Series E Redeemable
Preferred Stock of the Issuer, par value $.001 per share.
"SERIES Z PREFERRED STOCK" shall mean the Series Z Convertible
Preferred Stock of the Issuer, par value $.001 per share.
"TAG TRANSACTION" shall have the meaning ascribed to such term in
SECTION 3.1.
"TAGALONG PARTY" or "TAGALONG PARTIES" shall have the meaning ascribed
to such terms in SECTION 3.1.
"TRANSFER" shall have the meaning ascribed to such term in SECTION 2.
"TRANSFEROR" shall have the meaning ascribed to such term in SECTION
3.1.
"TRANSFEREE" shall have the meaning ascribed to such term in SECTION
3.1.
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"VOTING STOCK" shall mean the capital stock of any class or classes of
the Issuer, including, without limitation, the Common Stock, the Series D
Preferred Stock, the Series E Preferred Stock and the Series Z Preferred Stock,
the holders of which are entitled to participate generally in the election of
the members of the Issuer's Board, and any securities of the Issuer convertible
into, or exercisable or exchangeable for, any such capital stock of the Issuer.
SECTION 2. RIGHT TO TRANSFER
Except as provided in SECTION 3 OR 4 herein, Purchasers shall have the
right to freely sell, assign, transfer, give away or dispose of (any of the
foregoing being hereinafter referred to as a "TRANSFER") their respective
interests in the Securities, whether in whole or in part, to any Person without
restriction other than as set forth in SECTION 7.1 of the Exchange Agreement.
Subject to applicable securities laws, any restrictive legends on certificates
evidencing the ▇▇▇▇▇ Securities and any agreements governing or restricting
transfer of the ▇▇▇▇▇ Securities, the members of the ▇▇▇▇▇ Group may transfer
their respective interests in the Securities, whether in whole or in part, to
any Person without restriction.
SECTION 3. TAGALONG RIGHTS
3.1 If Holdings or any affiliate thereof ("TRANSFEROR") transfers,
other than in an offering pursuant to a registration statement or pursuant to
Rule 144 (or any successor provision) under the Securities Act, any shares of
Common Stock or Series Z Preferred Stock held by such Transferor to any Person
other than an affiliate of Holdings (a "TRANSFEREE") in one transaction or a
series of related transactions, which transfer or transfers constitute the
Transfer of a majority of the shares of Common Stock and Series Z Preferred
Stock held by Holdings and its affiliates as of the date hereof (a "TAG
TRANSACTION"), then each of the ▇▇▇▇▇ Group and JEDI (each a "TAGALONG PARTY,"
and collectively, the "TAGALONG PARTIES") shall have the right to sell to the
Transferee, on the same terms and conditions as provided with respect to the
sale by the Transferor to the Transferee, up to the number of shares of Common
Stock (rounded to the nearest whole share) equal to the product of (i) the total
number of shares of Common Stock which such Tagalong Party then owns and (ii) a
fraction with a numerator equal to the number of shares of Common Stock and
Series Z Preferred Stock then being sold by the Transferor and a denominator
equal to the total number of shares of Common Stock and Series Z Preferred Stock
owned by the Transferor. The right of the Transferor to sell shall be subject
to the condition that the Transferor shall cause the Transferee that proposes to
purchase the shares of the Transferor to offer to purchase, on such terms, such
number of shares from the Tagalong Parties; provided, however, that if the
Transferee is for any reason unwilling or unable to purchase the aggregate
number of shares from the Transferor together with the Tagalong Parties desiring
to Transfer shares in such transaction, then the number of shares to be sold by
each shall be proportionally reduced (based on the total number of shares
originally proposed to tag along or be sold) to such number as, when taken with
the number of shares to be sold by each other such party, shall be equal to the
number of shares which such Transferee is willing or able to purchase (provided
that such Transfer shall comply with the first sentence of this SECTION 3.1).
Each Tagalong Party shall only be entitled to sell shares of Common Stock under
this SECTION 3 that it owns as of the date hereof; securities acquired after the
date hereof in any manner shall not be subject to the tagalong rights provided
in this SECTION 3.
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3.2 The Transferor shall give written notice to the Tagalong Parties
at least fifteen (15) business days prior to any proposed Transfer(s) of Common
Stock or Series Z Preferred Stock constituting a Tag Transaction. The notice
shall specify the proposed Transferee, the number of shares of Common Stock
and/or Series Z Preferred Stock to be sold, the amount and type of consideration
to be received therefor, and the place and date on which the sale is to be
consummated. If either, or both, of the Tagalong Parties desire to include
shares of Common Stock in such sale pursuant to SECTION 3.1, such Tagalong Party
shall notify the Transferor not more than ten (10) business days after its
receipt of the notice from Transferor.
3.3 The tagalong rights set forth in this SECTION 3 shall not be
transferable or assignable by JEDI or by members of the ▇▇▇▇▇ Group, other than,
in each case, to their respective affiliates.
SECTION 4. DRAG-ALONG.
4.1 If Transferor sells, other than in a public offering pursuant to
a registration statement or pursuant to Rule 144 (or any successor provision)
under the Securities Act, shares of Common Stock and/or Series Z Preferred Stock
held by such Transferor to a Transferee in one transaction or a series of
related transactions which constitute the transfer of a majority of the then
outstanding shares of Common Stock and Series Z Preferred Stock of the Issuer,
Holdings and/or its affiliates may, at their option, cause each of the members
of the ▇▇▇▇▇ Group and JEDI (either party, and any affiliate thereof, being a
"DRAG-ALONG PARTY" and collectively, the "DRAG-ALONG PARTIES") to sell to the
Transferee, on the same terms and conditions as provided with respect to the
sale by Transferor to such Transferee, up to the number of shares of Common
Stock (rounded to the nearest whole share) equal to the product of (i) the total
number of shares of Common Stock which such Drag-Along Party then owns and (ii)
a fraction with a numerator equal to the number of shares of Common Stock and
Series Z Preferred Stock then being sold by the Transferor and a denominator
equal to the total number of shares of Common Stock and Series Z Preferred Stock
owned by the Transferor (such shares being "DRAG-ALONG SHARES" and such
transaction being a "DRAG-ALONG TRANSACTION"); provided however, that: (v)
Transferor shall only be entitled to drag along shares of Common Stock under
this SECTION 4 that the Drag-Along Party or Parties own as of the date hereof
(securities acquired after the date hereof in any manner shall not be subject to
the drag-along rights provided in this SECTION 4); (w) Transferor may not
receive more than the liquidation preference, plus accrued dividends thereon,
for the Series D Preferred Stock sold in a Drag-Along Transaction; (x) the price
for the Drag-Along Shares may not be lower than the price paid to other common
stockholders in the same or related transaction; (y) the consideration for the
Drag-Along Shares shall be paid in cash unless the relevant Drag-Along Party
consents to payment in a form other than cash; and (z) if the Drag-Along
Transaction is a Merger Transaction, the provisions of this Section 4.1 shall
not apply to the Common Stock held by JEDI unless the Series E Preferred Stock
then held by JEDI is redeemed in cash as of or prior to the effective date of
the Merger Transaction.
4.2 If any of the Drag-Along Parties proposes to Transfer to any of
its affiliates any of the Common Stock held by such Drag-Along Party, then such
Drag-Along Party, as a condition to the exercise of such right of Transfer,
shall cause such Transferee to agree to be bound by this SECTION 4. The
drag-along rights set forth in this SECTION 4 shall not be applicable to
transferees of the Drag-Along Parties other than to their respective affiliates.
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4.3 To exercise a drag-along right, Transferor shall give written
notice to the Drag-Along Party or Parties against whom the right is to be
enforced at least fifteen (15) business days prior to any proposed Transfer of
Common Stock and/or Series Z Preferred Stock. The notice shall specify the
terms of such Transfer and certify as to the facts supporting exercise of the
drag-along right. The Drag-Along Parties shall have ten (10) business days
after receipt of such notice (the "DRAG-ALONG NOTICE PERIOD") before such
parties shall be required to Transfer their shares to the Transferee. During
the Drag-Along Notice Period the Drag-Along Party or Parties in receipt of such
notice may not Transfer any Securities subject to Transferor's drag-along rights
under this SECTION 4 to any Person other than Transferor.
SECTION 5. BOARD OF DIRECTORS REPRESENTATION; AUTHORIZATION AND
CONVERSION.
5.1 BOARD OF DIRECTORS REPRESENTATION. From and after the date
hereof, each of Holdings, JEDI, the members of the ▇▇▇▇▇ Group and any of their
respective affiliates who hold Voting Stock shall vote their respective shares
of voting stock (including any shares of Voting Stock hereafter acquired, owned
or controlled by such Holder), at any regular or special meeting of shareholders
of the Issuer called for the purpose of filling positions on the Board, or in
any written consent executed in lieu of such a meeting of shareholders, and
shall otherwise take all actions necessary to ensure that (i) the Board consists
of six (6) members, and (ii) that one (1) individual shall be designated for
election to the board by the holders of Common Stock and Series Z Preferred
Stock. Each of JEDI and Holdings agrees that neither it nor its respective
affiliates shall vote their respective shares of Common Stock and Series Z
Preferred Stock then owned by such parties in the election of the individual to
be elected to the Board by the holders of the Common Stock and the Series Z
Preferred Stock pursuant to clause 5.1(ii) above so long as such respective
party or its affiliates hold Series D Preferred Stock or Series E Preferred
Stock AND the ▇▇▇▇▇ Group continues to hold 10% or more of the combined
outstanding shares of Common Stock and Series Z Preferred Stock; provided,
however, that if Holdings and its affiliates shall not at such time hold Series
D Preferred Stock entitling it and its affiliates to elect four (4) members to
the Board, then Holdings may vote an amount of its Common Stock in the election
of directors in proportion to its reduction in number of directors it (and its
affiliates) are then entitled to appoint pursuant to the terms of the Series D
Preferred Stock. By way of example only, if Holdings (and its affiliates) may
at the time of an election elect only one (1) member to the Board pursuant to
the terms of their Series D Preferred Stock, then Holdings (and its affiliates)
shall be entitled to vote seventy-five percent (75%) of their Common Stock in
the election of directors by holders of the Common Stock. Each member of the
▇▇▇▇▇ Group agrees that it will not vote its respective shares of Common Stock
for the election of directors so long as the ▇▇▇▇▇ Group continues to hold 10%
or more of the combined outstanding shares of Common Stock and Series Z
Preferred Stock; provided, further, that, notwithstanding the foregoing, if the
▇▇▇▇▇ Group does not for any reason vote its respective shares of Common Stock
for the election of directors, then both Holdings and JEDI and their affiliates
may vote their Common Stock and Series Z Preferred Stock for the election of any
director elected by holders of Common Stock, in addition to directors that may
be elected by holders of the Series D Preferred Stock or the Series E Preferred
Stock.
5.2 AUTHORIZATION AND CONVERSION. Until such time as all shares of
Series Z Preferred Stock is converted into Common Stock, each of Holdings, each
of the members of the
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▇▇▇▇▇ Group and JEDI, and each of their respective affiliates and
transferees, agree to vote their shares of Voting Stock at the Issuer's next
meeting of shareholders in favor of and otherwise cause the Issuer to
increase the number of shares of Common Stock authorized for issuance such
that the total number of authorized shares of Common Stock of the Issuer is
greater than or equal to the sum of (a) the number of outstanding shares of
Common Stock, (b) the number of shares required to convert to Common Stock
all outstanding shares of the Series Z Preferred Stock as provided in the
Preferred Stock Designation after giving effect to the Exchange, and (c) the
number of shares of Common Stock reserved for issuance pursuant to warrants
and options authorized for issuance under the Issuer's existing stock option
plans or agreements (the "AUTHORIZATION") so that the Issuer can thereupon
automatically convert the Series Z Preferred Stock to Common Stock as
provided in the Preferred Stock Designation. As soon as reasonably possible
after obtaining the Authorization, the Issuer shall cause the prompt filing
of an amendment to the Issuer's Articles of Incorporation with the Secretary
of State of Washington to give effect to the Authorization.
SECTION 6. WAIVER OF ANTI-TAKEOVER RIGHTS
To the extent permitted by law, each of JEDI and its affiliates and each of
the members of the ▇▇▇▇▇ Group and their affiliates, expressly waive all rights
and claims against Fund V, Holdings or the Issuer or otherwise with respect to
the transactions contemplated by the Exchange Agreement or any future or
subsequent transactions under any anti-takeover statutes of applicable law
including, but not limited to, Chapter 19 of the Washington Business Corporation
Act (RCW 23B.19.010 - 19.050).
SECTION 7. REPRESENTATIONS AND WARRANTIES; CONSENT TO EXCHANGE
Each member of the ▇▇▇▇▇ Group, respectively, hereby represents,
warrants and covenants as follows:
7.1 Pengo is the legal and beneficial holders of the ▇▇▇▇▇
Securities as set forth on Schedule A hereto next to its name. Pengo has
neither previously sold, assigned, conveyed, transferred or otherwise disposed
of, in whole or in part, its securities constituting all or a portion of the
▇▇▇▇▇ Securities, nor, as of the date hereof, has entered into any agreement to
sell, assign, convey, transfer or otherwise dispose of, in whole or in part,
such securities.
7.2 SEP is the legal and beneficial holder of the ▇▇▇▇▇ Securities
as set forth on Schedule A hereto next to its name. SEP has neither previously
sold, assigned, conveyed, transferred or otherwise disposed of, in whole or in
part, its securities constituting all or a portion of the ▇▇▇▇▇ Securities, nor,
as of the date hereof, has entered into any agreement to sell, assign, convey,
transfer or otherwise dispose of, in whole or in part, such securities.
7.3 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is the legal and beneficial holder of the ▇▇▇▇▇
Securities as set forth on Schedule A hereto next to his name. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, his securities constituting all or a portion
of the ▇▇▇▇▇ Securities, nor, as of the date hereof, has entered into
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any agreement to sell, assign, convey, transfer or otherwise dispose of, in
whole or in part, such securities.
7.4 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is the legal and beneficial holder of the ▇▇▇▇▇
Securities as set forth on Schedule A hereto next to his name. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, his securities constituting all or a portion
of the ▇▇▇▇▇ Securities, nor, as of the date hereof, has entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or
in part, such securities.
7.5 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ is the legal and beneficial holder of the
▇▇▇▇▇ Securities as set forth on Schedule A hereto next to her name. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ has neither previously sold, assigned, conveyed, transferred or
otherwise disposed of, in whole or in part, her securities constituting all or a
portion of the ▇▇▇▇▇ Securities, nor, as of the date hereof, has entered into
any agreement to sell, assign, convey, transfer or otherwise dispose of, in
whole or in part, such securities.
7.6 ▇▇▇▇ ▇. ▇▇▇▇▇ is the legal and beneficial holder of the ▇▇▇▇▇
Securities as set forth on Schedule A hereto next to his name. ▇▇▇▇ ▇. ▇▇▇▇▇ has
neither previously sold, assigned, conveyed, transferred or otherwise disposed
of, in whole or in part, his securities constituting all or a portion of the
▇▇▇▇▇ Securities, nor, as of the date hereof, has entered into any agreement to
sell, assign, convey, transfer or otherwise dispose of, in whole or in part,
such securities.
7.7 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the legal and beneficial holder of the ▇▇▇▇▇
Securities as set forth on Schedule A hereto next to his name. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, his securities constituting all or a portion
of the ▇▇▇▇▇ Securities, nor, as of the date hereof, has entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or
in part, such securities.
7.8 Each of Pengo, SEP, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, by signing this Agreement,
hereby consent, individually, and collectively as holders of a majority of the
Common Stock of the Issuer, to the transactions constituting, or entered into in
connection with, the Exchange.
SECTION 8. SPECIAL PURCHASE RIGHTS
Each time Holdings, Fund V or Portfolio (or any of their affiliate
transferees of Holdings' securities acquired under the Exchange Agreement)
endeavor to purchase shares of Common Stock from any Person not a party hereto
other than from an affiliate, Holdings shall offer to buy, for the same price
and on the same terms and conditions, a proportionate number (based on the
percentages set forth in Schedule A hereto or such other percentages as
specified in any subsequent notice) of shares of Common Stock from each member
of the ▇▇▇▇▇ Group and JEDI equal in aggregate amount to the amount Holdings,
Fund V or Portfolio endeavor to purchase or the total number of shares of Common
Stock then held by members of the ▇▇▇▇▇ Group and JEDI, whichever is less, based
on the number of shares of Common Stock to be
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purchased by Holdings, Fund V or Portfolio (or their affiliate transferees).
If any offer pursuant to this SECTION 8 is not accepted, in writing, within
five (5) business days by any member of the ▇▇▇▇▇ Group or JEDI, such offer
shall be deemed rejected and Holdings shall have no further obligations
pursuant to this SECTION 8 with respect to such member of the ▇▇▇▇▇ Group or
JEDI and that particular purchase of Common Stock by Holdings, Portfolio
and/or Fund V (and/or their affiliate transferees).
SECTION 9. MISCELLANEOUS
9.1 SUCCESSORS AND ASSIGNS; TERMINATION Except as otherwise
expressly provided herein, this Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto;
provided, however, as to any particular securities, this Agreement shall
terminate and not apply when such securities are no longer held by any members
of the ▇▇▇▇▇ group, the purchasers or their respective affiliates; provided
further that the provisions of SECTION 5.2 shall apply to Securities until all
outstanding Series Z Preferred Stock is converted to Common Stock; and provided
further, that the provisions of SECTION 8 shall apply to Holdings, Fund V and
Portfolio regardless of their holdings of Securities. Nothing herein shall be
construed to prohibit any future holder of the Securities from assuming the
rights and obligations under this Agreement.
9.2 AMENDMENT AND WAIVER, ETC. This Agreement may be amended, and
the observance of any term of this Agreement may be waived only with the written
consent of all parties adversely effected or impacted by such waiver or
amendment. No failure or delay on the part of any of the parties in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to the parties at law or in
equity or otherwise.
9.3 COUNTERPARTS. Two or more duplicate originals of this Agreement
may be signed by the parties, each of which shall be an original but all of
which together shall constitute one and the same instrument.
9.4 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
9.5 SPECIFIC PERFORMANCE. The parties recognize that money damages
may be inadequate to compensate for a breach of the obligations hereunder, and
irrevocably agree that the remedy of specific performance or the granting of
such other equitable remedies as may be appropriate may be granted in order to
afford the parties the benefits of this agreement and the parties shall not
object and waive any right to object to such remedies on the grounds that money
damages will not be sufficient to compensate for a breach hereof.
9.6 NOTICES. All communications under this Agreement shall be in
writing and shall be effective (a) upon hand delivery or delivery by telecopy or
facsimile, if delivered on a
9
business day during normal business hours where such notice is to be received
or (b) on the second business day following the date of mailing by first
class mail, postage prepaid or by express or courier service, fully prepaid
or upon actual receipt of such mailing, whichever shall first occur:
(i) if to any party hereto at its address for notice specified beneath its
name on the signature page hereof, or at such other address as it may
have furnished in writing to the Issuer; or
(ii) if to any other Person who is the registered holder of any Preferred
Stock, to the address for the purpose of such holder as it appears in
the stock ledger of the Issuer.
9.7 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the law of the State of Washington.
9.8 PRIOR AGREEMENT. Upon execution of this Agreement by the parties
hereto, the Prior Agreements shall be automatically terminated as of the date
hereof.
10
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement as of the day and year first above written.
INLAND RESOURCES INC.,
a Washington corporation
By: _____________________________________
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
INLAND HOLDINGS LLC, a California limited
liability company,
By: TRUST COMPANY OF THE WEST, a California trust
company, as Sub-Custodian for Mellon Bank for the
benefit of Account No. CPFF 873-3032, Member
By: ________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
By: ________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
By: TCW PORTFOLIO NO. 1555 DR V SUB-CUSTODY
PARTNERSHIP, L.P., a California limited
partnership, Member
By: TCW ROYALTY COMPANY V, a California
corporation, Managing General Partner
By: ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies To:
TCW Asset Management Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12
TRUST COMPANY OF THE WEST,
a California trust company, as Sub-Custodian for
Mellon Bank for the benefit of Account No.
CPFF 873-3032
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
By: __________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies To:
TCW Asset Management Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13
JOINT ENERGY DEVELOPMENT
INVESTMENTS II LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Enron Capital Management II Limited
Partnership, its General Partner
By: Enron Capital II Corp., its General Partner
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
Address for Notices:
Enron North America Compliance Department
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/4946
14
PENGO SECURITIES CORP., a Delaware corporation
By: _____________________________________
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
15
▇▇▇▇▇ ENERGY PARTNERSHIP, a New York general
partnership
By: ▇▇▇▇▇ Management LLC,
a New York limited liability company,
its General Partner
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
16
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, an individual
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
18
SCHEDULE A
Shares of Common Stock of the Issuer Held By Members of the ▇▇▇▇▇ Group and JEDI
after giving effect to the Exchange
HOLDER SHARES OF COMMON STOCK ▇▇▇▇▇ GROUP SHARE PERCENTAGE
Pengo Securities 4,029,269 46.67%
Corp.*
▇▇▇▇▇ Energy 152,220 1.76
Partnership*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇* 874,410 10.13
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇* 163,735 1.90
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 108,000 1.25
▇▇▇▇▇*
▇▇▇▇ ▇. ▇▇▇▇▇* 163,735 1.90
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇* 220,702 2.56
JEDI 2,920,975 33.83
TOTAL 8,633,046 100%
* members of the ▇▇▇▇▇ Group
19
