STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT is made and entered into as of
January 14, 2000, by and among Xxxxxx Petroleum Corporation, a Louisiana
corporation (the "Company"), and each of the other Persons listed on the
signature pages attached hereto or otherwise party to this Agreement (the
"Holders").
W I T N E S S E T H
WHEREAS, the Company and each of the Holders deem it to be in their
best interests to provide for continuity in the control and operation of
the Company, for restrictions on the transfer of certain securities and for
various other matters set forth herein.
NOW, THEREFORE, in consideration of the agreements and mutual
covenants set forth herein, the parties agree as follows:
SECTION 1
DEFINITIONS
As used in this Agreement, the following terms have the following
meanings:
"Affiliate" means, with respect to any specified Person, (a) any
subsidiary of such Person; (b) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with such specified Person; (c) any other Person that owns, directly or
indirectly, 10% or more of such specified Person's capital stock; (d) any
officer or director of (i) any such specified Person, (ii) any subsidiary
of such specified Person, or (iii) any Person described in clause (b) or
(c) above; or (e) any heir or legatee or other Person having a relationship
with any natural Person by blood, marriage or adoption not more remote than
first cousin or any Person directly or indirectly controlling or controlled
by or under common control with such other Person described in this clause
(e). For purposes of this definition, (a) "control," with respect to any
specified Person, means the possession of the power, whether or not
exercised, to direct or cause the direction of the management or policies
of such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise, and the terms "controlling"
and "controlled" have meanings correlative to the foregoing and (b) none of
the Holders shall be deemed to be an Affiliate of the Company.
"Agreement" shall mean this Stockholders' Agreement, including all
Exhibits hereto, as it may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Approved Sale" has the meaning assigned to such term in Section 3(a).
"Bankruptcy Code" shall mean Title 11 of the United States Code
entitled "Bankruptcy," as amended, or any successor statute.
"Board" shall mean the Board of Directors of the Company.
"Common Shares" shall mean the issued and outstanding shares of common
stock, no par value, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Xxxxxx" shall mean XxXxxx X. Xxxxxx.
"Majority Holders" shall mean a majority of the Common Shares held of
record by the TCW Funds and their respective Affiliates, so long as such
Persons hold at least 25% of the Common Shares, and, thereafter, shall mean
the Holders of record holding a majority of the Common Shares.
"Major Decisions" has the meaning assigned to such term in Section
4(b).
"Other Holders" shall mean the Holders designated as such on the
signature page hereto.
"Permitted Xxxxxx Transferee" shall mean any friend of Xxxxxx or
immediate member of Xxxxxx'x family who receives Securities from Xxxxxx by
gift, donation or other gratuitous inter vivos Transfer.
"Permitted Transfer" means (a) any Transfer by a Holder to any of its
Affiliates, (b) any Transfer in connection with an Approved Sale and (c)
any Transfer by Xxxxxx to a Permitted Xxxxxx Transferee.
"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.
"Public Offering" has the meaning assigned to such term in the
Registration Rights Agreement, dated as of January 14, 2000, among the
Company and each of the other Persons listed on the signature pages
attached thereto or otherwise party to such agreement.
"Sale of the Company" means, in one or a series of related
transactions, the sale of the Company to a Third Party or "group" (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended) of Third Parties pursuant to which such Person or
Persons acquire (a) securities representing a majority of the Common Shares
of the Company on a fully-diluted basis (whether by merger, consolidation,
sale, liquidation, dissolution, or transfer of the Company's outstanding
securities) or (b) all or substantially all the Company's assets determined
on a consolidated basis.
"SEC" means the Securities and Exchange Commission, or any successor
agency thereto.
"Securities" shall mean the Common Shares and any other shares of
capital stock (and any other securities convertible into, exchangeable for
or otherwise exercisable for shares of capital stock) of the Company
existing on the date of this Agreement or issued hereafter.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holders" has the meaning assigned to such term in Section
3(a).
"TCW Funds" shall mean each of the parties to this Agreement listed as
a "TCW Fund" on the signature pages hereto and any Affiliate of such party
that holds at any time any of the Securities.
"Third Party" shall mean with respect to any proposed transferee of
Securities, any Person other than an Affiliate of the proposed transferor
of such Securities.
"Transfer" has the meaning assigned to such term in Section 2(a).
"Transferee" has the meaning assigned to such term in Section 2(a).
"Transferor" has the meaning assigned to such term in Section 2(a).
SECTION 2
GENERAL PROVISIONS REGARDING TRANSFER
(a) GENERAL RESTRICTIONS. So long as this Agreement shall remain in
force, no Securities may be issued, sold, assigned, transferred, given away
or in any way disposed of by any Holder (any of the foregoing being
hereinafter referred to as a "Transfer"), other than pursuant to a Public
Offering, unless:
(i) the Person in whose favor such Transfer is made (a
"Transferee") shall deliver to the Company a written acknowledgment of
such Transferee, in the form attached as Exhibit A, that the
Securities to be transferred are subject to this Agreement and
confirming the Agreement of such Transferee to be bound by the
provisions of this Agreement;
(ii) if such Transfer shall be made other than pursuant to a
public offering registered under the Securities Act, and in accordance
with applicable state law, the person proposing to make such Transfer
(the "Transferor") shall give to the Company, if reasonably requested
by the Company, a written opinion in form and substance reasonably
satisfactory to the Company's legal counsel to the effect that the
proposed Transfer may be effected without registration under the
Securities Act or any applicable state law; and
(iii) the Transferor shall (A) take all such actions and execute
and deliver all such documents as may be necessary or reasonably
requested by the Company in order to consummate the Transfer of such
Securities to such Transferee and (B) reimburse the Company for all
costs and expenses incurred by the Company in connection with the
Transfer, including, but not limited to, any applicable stock transfer
taxes.
Any attempted Transfer other than in accordance with this Agreement shall
be void, and the Company shall refuse to recognize any such Transfer and
shall not reflect on the Company's records any change in record ownership
of the Securities pursuant to any such attempted Transfer.
(b) PLEDGE AND HYPOTHECATION PROHIBITED. Prior to a Public Offering,
without the prior written consent of the Majority Holders, no Holder (other
than the TCW Funds and Xxxxxx) shall in any manner pledge, hypothecate or
encumber, or grant options with respect to, any Securities; provided that
any pledgee or other potential Transferee of the TCW Funds or Xxxxxx shall
agree to be bound by the provisions of this Agreement with respect to any
Securities that are Transferred as a result of any such pledge,
hypothecation, encumbrance or other option grant pursuant to this Section
2(b).
(c) RULES 144 AND 144A.
(i) RULE 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the
Exchange Act (or, if the Company is not required to file such reports, it
will, upon the request of any Holder of Securities, make publicly available
such information) and that it will take such further action as the Holders
of Securities may reasonably request to the extent required from time to
time to enable such Holders to sell Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule
144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC. Upon
the request of any Holder of Securities, the Company will deliver to such
Holder (i) a written statement as to whether it has complied with such
reporting requirements and (ii) at the Company's expense, an opinion of the
Company's counsel as to the availability of an exemption from the
registration requirements of the Securities Act in connection with a
proposed transfer of Securities by such Holder.
(ii) RULE 144A. The Company shall, at all times during which it
is neither subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b)
under the Exchange Act, promptly upon the written request of any Holder of
Securities, provide in writing to such Holder and to any prospective
transferee of any of the Securities of such Holder the information
concerning the Company described in Rule 144A(d)(4) under the Securities
Act ("Rule 144A Information"). The Company also shall, upon the written
request of any such Holder, cooperate with and assist such Holder or any
member of the National Association of Securities Dealers, Inc. PORTAL
system in applying to designate and thereafter maintain the eligibility of
the Common Stock for trading through PORTAL. The Company's obligations
under this Section 2(c) shall at all times be contingent upon receipt from
the prospective transferees of Securities of a written agreement to take
all reasonable precautions to safeguard the Rule 144A Information from
disclosure to anyone other than Persons who will assist such transferee in
evaluation the purchase of the Securities.
SECTION 3
SALE OF THE COMPANY
(a) APPROVED SALE. If Holders holding 75% or more of the Common
Shares (the "Selling Holders") approve a Sale of the Company to a Third
Party or group of Third Parties and the Board has obtained a fairness
opinion from a reputable, disinterested investment banker with respect to
such sale (an "Approved Sale"), then each Holder will consent to and raise
no objections against the Approved Sale. If the Approved Sale (A) is
structured as a merger or consolidation, each Holder shall waive any
dissenters' rights, appraisal rights, or similar rights in connection with
such merger or consolidation, or (B) is structured as a sale of securities,
each Holder shall agree to sell all of his or its Securities on the terms
and conditions approved by the Majority Holders. Each Holder shall take
all necessary or desirable actions in connection with the consummation of
the Approved Sale as requested by the Company.
(b) OTHER SECURITIES. The obligations of the Holders with respect to
the Approved Sale are subject to the condition that each Holder of
Securities then currently convertible, exchangeable, or exercisable for
Common Shares shall be given an opportunity at the election of the Holder
to either (A) exercise such rights before the consummation of the Approved
Sale and participate in such sale as Holders of Common Shares, or (B) to
sell such Securities as part of such Approved Sale at a price equal to the
full purchase price determined for Common Shares as part of the Approved
Sale, reduced by the aggregate exercise price for such Securities.
(c) PURCHASER REPRESENTATIVE. If the Company or the Selling Holders
enter into any negotiation or transaction for which Rule 506 promulgated
under the Securities Act (or any similar rule then in effect) may be
available with respect to such negotiation or transaction (including a
merger, consolidation, or other reorganization), each Holder will, at the
request of the Company, appoint either a purchaser representative (as such
term is defined in Rule 501 promulgated under the Securities Act)
designated by the Company, in which event the Company will pay the fees of
such purchaser representative, or another purchaser representative
(reasonably acceptable to the Company), in which event such Holder will be
responsible for the fees of the purchaser representative so appointed.
(d) EXPENSES OF SALE. Each Holder transferring Securities pursuant
to this Section 3 will bear its pro rata share (based upon the number of
Securities to be sold) of the costs of any sale of Securities pursuant to
an Approved Sale to the extent such costs are incurred for the benefit of
all such Holders of Securities and are not otherwise paid by the Company or
the acquiring party. Costs incurred by the Holders of Securities on their
own behalf will not be considered costs of the Approved Sale. Each Holder
transferring Securities pursuant to this Section 3 shall be obligated to
join on a pro rata basis (based upon the number of Securities to be sold)
in any indemnification or other obligations that are part of the terms and
conditions of the Approved Sale (other than any such obligations that
relate specifically to a particular Holder, such as indemnification with
respect to representations and warranties given by a Holder regarding such
Holder's title to and ownership of Securities); PROVIDED, that the
aggregate amount of all payments made by each Holder (other than payments
in respect of any such obligations that relate specifically to a particular
Holder) in satisfaction of claims for indemnification shall not exceed the
aggregate proceeds of the Securities Transferred pursuant to this Section 3
by such Holder.
SECTION 4
BOARD OF DIRECTORS REPRESENTATION AND MANAGEMENT RIGHTS
(a) REPRESENTATION. The TCW Funds shall be entitled to designate one
(1) member of the Board (the "TCW Designee"), unless and until the earlier
of such date that (i) the TCW Funds collectively own less than 5% of the
Common Shares, or (ii) solely as a result of any Transfers by the TCW
Funds, the TCW Funds collectively own less than 10% of the Common Shares.
Jefferies & Company, Inc. ("Jefferies") shall be entitled to designate one
(1) member of the Board (the "Jefferies Designee"), unless and until the
earlier of such date that (i) Jefferies owns less than 5% of the Common
Shares, or (ii) solely as a result of any Transfers by Jefferies, Jefferies
owns less than 10% of the Common Shares. XxXxxx X. Xxxxxx shall be
entitled to designate one (1) member of the Board (the "Xxxxxx Designee"),
unless and until the date he has Transferred 50% or more of the Securities
of the Company that he owned as of the date hereof to Persons other than
Permitted Xxxxxx Transferees and the aggregate ownership interest of Xxxxxx
and Permitted Xxxxxx Transferees represents (or which when converted into,
exchanged for or exercised for shares of capital stock of the corporation,
would represent) less than 10% of the voting power of the Company. Any
Person entitled to designate a member of the Board pursuant to the
foregoing provisions also shall be entitled, exclusively and in such
person's sole discretion, to designate such member for removal from the
Board. The Holders shall take all action within their respective power,
including the voting of Common Shares, required to cause the election of
the TCW Designee, the Jefferies Designee and the Xxxxxx Designee to the
Board, or to remove any member of the Board designated for removal by the
TCW Funds, Jefferies or Xxxxxx, as applicable. The TCW Funds and Jefferies
shall select which Board member shall serve as Chairman of the Board;
provided that such Holder is entitled to designate a member of the Board at
such time. The parties agree that a fourth director shall be elected by
the stockholders of the Company in accordance with the Company's bylaws.
The parties understand that neither the TCW Designee nor the Jefferies
Designee nor the fourth director to be elected by the stockholders may be a
current director, officer, or employee of Jefferies or any Affiliate of
Jefferies. Any Person entitled to designate a member of the Board pursuant
to the foregoing provisions agrees to certify in writing, in form
reasonably satisfactory to the Company, the number of Common Shares
beneficially owned by such Person as of the record date set for the
stockholders meeting at which the directors will be elected and to deliver
such certificate to the Company within five days after such record date.
(b) MAJOR DECISIONS. Subject to clause (c) below, no action shall be
taken, sum expended, decision made or obligation incurred by or on behalf
of the Company with respect to any matter unless approved or ratified by a
majority of the Board if such action would constitute a Major Decision.
"Major Decisions" shall mean and consist of the following:
(i) approval of the annual and quarterly capital expenditure and
operating budgets of the Company;
(ii) approving or incurring any capital expenditure, purchase or
other expenditure of the Company which exceeds in the aggregate with
all other capital expenditures, purchases or other expenditures during
the fiscal year in which such purchase or expenditure is approved or
incurred, $50,000, unless such capital expenditure, purchase or other
expenditure is identified in the annual or quarterly capital
expenditure and operating budget of the Company previously approved by
the Board;
(iii) the sale, lease or other disposition of assets of the
Company, other than assets having a fair market value, individually or
in the aggregate with assets sold, leased or otherwise disposed in a
transaction or series of related transactions, of less than $50,000;
(iv) entering into any contract or agreement that could by its
terms require an expenditure by the Company of more than $10,000
during any fiscal year, whether for purposes of acquisition of seismic
data, exploration or otherwise;
(v) the incurrence or assumption of any indebtedness for borrowed
money by, or the repayment (other than in accordance with the express
terms thereof) refinancing of any indebtedness of, the Company or the
granting of any mortgage, lien or other encumbrance on any of the
assets of the Company or the giving of any guaranty by the Company;
(vi) the commitment to drill or drilling of any well (whether
exploratory or developmental) by the Company;
(vii) the issuance of any Securities of the Company;
(viii) terminating or materially modifying any material
agreement, including any lease relating to an oil and gas property, to
which the Company is or hereafter becomes a party;
(ix) the acquisition of a working interest in or under any lease
relating to an oil and gas property, or entering into an operating
agreement with respect thereto;
(x) the appointment or termination of the officers or senior
managers of the Company and the establishment of (a) benefit plans,
salaries and bonuses for officers or directors of the Company and (b)
the organizational structure and staffing plan, including salary
ranges for each position;
(xi) payment of any dividend, distribution, redemption payment or
other payment to the stockholders of the Company;
(xii) any amendment of the bylaws of the Company;
(xiii) granting to any individual the authority to open and draw
checks on bank accounts in the name of the Company or endorse checks
for deposit to such accounts;
(xiv) any decision with respect to the principal place of
business of the Company or the fiscal year of the Company;
(xv) the entry by the Company into any transaction or agreement
with any Affiliate of the Company; and
(xvi) the engagement or retention of outside legal counsel by the
Company.
In addition, any action by the Company to materially amend, modify or
supplement any document, instrument, transaction or other matter described
above as a Major Decision shall require the approval of a majority of the
Board if the same as so amended, modified or supplemented would be
inconsistent with the terms previously approved with respect thereto by the
Board.
(c) COMPENSATION. Members of the Board shall not be entitled to any
compensation for their service on such Board (other than reimbursement of
reasonable out-of-pocket expenses incurred in connection with Board
meetings or director-related activities for services as a Board member)
without the written consent of Majority Holders; provided, however, that no
member of the Board who is an employee or officer of (i) the Company, (ii)
any Holder or (iii) any Affiliate of the Company or any Holder shall be
entitled to compensation (other than reimbursement of reasonable
out-of-pocket expenses incurred in connection with Board meetings or
director-related activities for services) as a Board member.
(d) D&O INSURANCE. The Company shall at all times maintain in force
for the benefit of all directors and officers of the Company coverage from
a reputable insurer selected by the Majority Holders with coverages
(including, without limitation, commercially available coverages against
environmental liabilities) which are not less than Twenty Five Million
Dollars ($25,000,000) and deductibles which are approved by the Majority
Holders. If the Company shall ever fail to pay when due any premium or
other charge with respect to such insurance coverage, or otherwise fail to
renew such coverage, the Majority Holders or their Affiliates may pay such
premium or charge, or renew such coverage, and the Company shall promptly
reimburse such Majority Holders or their Affiliates.
SECTION 5
BUSINESS OPPORTUNITIES
Any of the Majority Holders and any member of the Board who is a TCW
Designee and Xxxxxx (subject to the restrictions as set forth in Article V,
Section 3 of his Employment Agreement), or any of their respective
Affiliates, may engage or possess an interest in another business, activity
or Person of any kind, nature or description, independently or with others,
regardless of whether such business, activity or Person involves the oil
and gas exploration and development business or is otherwise competitive
with the Company. Neither the Company nor any Holder or member of the
Board shall have any rights or obligations by virtue of this Agreement or
the relationship created hereby in or to such venture or income or profits
or losses derived therefrom, and the pursuit of such venture, even if
competitive with the business of the company, shall not be deemed wrongful
or improper. Nothing in this Agreement or any fiduciary or other duty
created hereby or as a result of serving as a member of the Board or being
a shareholder of the Company is intended to impose on any of the Majority
Holders or any member of the Board who is a TCW Designee and Xxxxxx
(subject to the restrictions as set forth in Article V, Section 3 of his
Employment Agreement), or any of their respective Affiliates, the
obligation to make available to the Company or any Holder any specific
investment or other business opportunity or to share in or impose a
constructive trust on any fees, property or other considerations earned or
investments made by any of the Majority Holders or any member of the board
who is a TCW Designee and Xxxxxx (subject to the restrictions as set forth
in Article V, Section 3 of his Employment Agreement), or any of their
respective Affiliates, including, without limitation, any investment funds
or partnerships in which such Persons may participate.
SECTION 6
CERTIFICATES
(a) RESTRICTIVE ENDORSEMENTS. Each certificate evidencing any
Securities shall bear a legend in substantially the following form:
"The securities evidenced by this certificate are subject to
a Stockholders' Agreement dated as of January 14, 2000, copies of
which are on file at the principal office of the corporation and
will be furnished to the Holder on request to the Secretary of
the corporation. Such Stockholders' Agreement provides, among
other things, for certain restrictions on voting, sale, transfer,
pledge, hypothecation or other disposition of the securities
evidenced by this certificate."
In addition, unless counsel to the Company has advised that such legend is
no longer needed, each certificate evidencing the Securities shall bear a
legend in substantially the following form:
"The securities evidenced by this certificate have not been
registered pursuant to the Securities Act of 1933, as amended
(the "Act"), or any state securities law, and such securities may
not be sold, transferred or otherwise disposed of unless the same
are registered and qualified in accordance with the Act and any
applicable state securities laws, or in the opinion of counsel
reasonably satisfactory to the corporation such registration and
qualification are not required."
(b) REPLACEMENT CERTIFICATES. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any of its respective certificates evidencing any Securities,
and (in the case of loss, theft or destruction) of indemnity reasonably
satisfactory to it, upon surrender and cancellation of such certificate or
receipt of such indemnity, the Company will execute, register and deliver a
new certificate of like tenor in lieu of such lost, stolen, destroyed or
mutilated certificate.
SECTION 7
EQUITABLE RELIEF
The parties hereto agree and declare that legal remedies may be
inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used
to enforce such provisions.
SECTION 8
MISCELLANEOUS
(a) COMPANY INFORMATION. The Company agrees that so long as the
Company shall not have registered any of its Securities pursuant to Section
12 of the Exchange Act, or filed a registration statement pursuant to the
requirements of the Securities Act, the Company will cause to be conducted
an annual audit of the Company and will distribute quarterly financial
statements to the shareholders, along with a brief and general summary of
the financial condition of the Company prepared by management.
(b) NOTICES. All notices and other communications provided for or
permitted under this Agreement shall be made in writing by hand-delivery,
certified first-class mail, return receipt requested, next-day air courier
or facsimile, in the case of the case of the Company, as follows:
Xxxxxx Petroleum Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: XxXxxx X. Xxxxxx
or, if to the Holders, to the addresses listed below their names on the
signature pages hereto and, if to any other Person who is the registered
Holder of any Securities, to the address for the purpose of such Holder as
it appears in the stock ledger of the Company or at such other address as
such party may have furnished in writing to each other party hereto. Any
notice shall be deemed to have been duly given when delivered by hand, if
personally delivered, and if sent by mail, two business days after being
deposited in the mail, postage prepaid.
(c) AMENDMENT. This Agreement may be changed, modified or amended by
a writing signed by the Majority Holders; provided that no such change,
modification or amendment shall be enforceable against any party to this
Agreement whose rights or obligations hereunder will be materially and
adversely affected thereby unless the same shall be in writing and signed
by such party.
(d) TERMINATION. This Agreement may be terminated at any time by an
instrument in writing signed by the Majority Holders and, for so long as he
is entitled to designate a member of the Board pursuant to Section 4(a),
Xxxxxx, provided that, for so long as he or his heirs and legatees own
Securities of the Company, Section 2(c) shall not be terminated without the
consent of Xxxxxx.
(e) WAIVER. No failure or delay on the part of the parties or any of
them in exercising any right, power or privilege hereunder, nor any course
of dealing between the parties or any of them shall operate as a waiver of
any such right, power or privilege nor shall any single or partial exercise
of any such right, power or privilege preclude the simultaneous or later
exercise of any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and are not exclusive of any
rights or remedies which the parties or any of them would otherwise have.
No notice to or demand on the Company shall entitle the Company to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the other parties or any of them to
take any other or further action in any circumstances without notice or
demand.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(g) GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal laws of the State of Louisiana applied to
contracts to be made and to be performed therein without giving effect to
the considerations of conflicts of laws.
(h) FILING. A copy of this Agreement and of all amendments hereto
shall be filed at the principal office of the Company.
(i) ALL SECURITIES SUBJECT TO THIS AGREEMENT.
(i) Any Securities now or hereafter held by any Person who is a
party to this Agreement shall be held by such Person subject to the
transfer and other restrictions of this Agreement and such Person shall be
deemed to be a "Holder" for all such purposes of this Agreement;
(ii) A Holder who ceases to own any Securities as provided for in
this Agreement shall cease to be a Holder for purposes of this Agreement;
and
(iii) The provisions of this Agreement shall be deemed to apply
equally to any Security or other equity securities distributed in respect
of the Securities.
(j) BENEFIT AND BINDING EFFECT. Except as otherwise provided in this
Agreement, no right under this Agreement shall be assignable and any
attempted assignment in violation of this provision shall be void. The
rights of XxXxxx X. Xxxxxx under this Agreement shall vest automatically in
his heirs and legatees upon compliance with the requirements of Section
2(a), except that no legal opinion shall be required.
(k) 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 provisions in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(l) FURTHER ASSURANCES. Each Holder shall cause all Securities that
are entitled to vote and are registered in the name of such Holder to be
voted, and will otherwise take or cause to be taken all such other action
as may be necessary, to implement the provisions of this Agreement and
shall not take any action inconsistent herewith or therewith.
* * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders' Agreement as of the day and year first above written.
XXXXXX PETROLEUM CORPORATION, a Louisiana
corporation
By: /s/ XxXxxx X. Xxxxxx
--------------------------------------
Name: XxXxxx X. Xxxxxx
Title: CEO
TCW FUNDS:
TCW/CRESCENT MEZZANINE PARTNERS, L.P.
TCW/CRESCENT MEZZANINE TRUST
TCW/CRESCENT MEZZANINE INVESTMENT
PARTNERS, L.P.
By: TCW/Crescent Mezzanine, L.L.C.
Its General Partner or Managing Director
By: /s/ Xxxxxxxx X. Tell, Jr.
--------------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Asset Management Company,
Its Investment Manager
By: /s/ Xxxxxxxx X. Tell, Jr.
--------------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Ltd.
As General Partner
By: /s/ Xxxxxxxx X. Tell, Jr.
--------------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
By: TCW Investment Management Company,
As Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
OTHER HOLDERS:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
BANKAMERICA INVESTMENT CORP.
By: /s/ X.X. Xxx Xxxxxx
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Name: X.X. Xxx Xxxxxx
Title: Attorney-in-Fact
XXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
Title:
XXXXXX X. XXXXXX
/s/ XxXxxx X. Xxxxxx
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XxXxxx X. Xxxxxx
____________________________________________
Type or Print Name of Beneficial Holder
By:
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Name:
Its:
Address:------------------------------
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EXHIBIT A
ACKNOWLEDGMENT OF TRANSFEREE
This Acknowledgment ("Acknowledgment") is executed pursuant to the
terms of the Stockholders' Agreement of Xxxxxx Petroleum Corporation (the
"Company") dated as of January 14, 2000, a copy of which is attached hereto
(the "Agreement"), by the transferee ("Transferee") executing this
Acknowledgment. By the execution of this Acknowledgment, the Transferee
agrees as follows:
1. ACKNOWLEDGMENT. Transferee acknowledges that Transferee is
acquiring certain Securities of the Company, subject to the terms and
conditions of the Agreement (including the Exhibits thereto). Capitalized
terms used herein without definition are defined in the Agreement and are
used herein with the same meanings set forth therein.
2. AGREEMENT. Transferee (a) agrees that the Securities acquired by
Transferee shall be bound by and subject to the terms of the Agreement
(including the Exhibits thereto) and (b) hereby joins in, and agrees to be
bound by, the Agreement (including the Exhibits thereto) with the same
force and effect as if he were originally a party thereto.
3. NOTICE. Any notice required as permitted by the Agreement shall
be given to Transferee at the address listed beside Transferee's signature
below.
4. JOINDER. The spouse of the undersigned Transferee, if
applicable, executes this Acknowledgment to acknowledge its fairness and
that it is in such spouse's best interests, and to bind such spouse's
community interest, if any, in the Securities to the terms of the Agreement
(including the Exhibits thereto).
EXECUTED AND DATED on this _____ day of ________________, _________.
TRANSFEREE:
By:
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Notice
Address:------------------------------------
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SPOUSE:
By:
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