EXHIBIT 10.39
CLIFFWOOD OIL & GAS CORP.
FIRST AMENDMENT TO SHAREHOLDERS' AGREEMENT
THIS FIRST AMENDMENT TO SHAREHOLDERS' AGREEMENT ("Amendment") is dated as
of May 30, 1997 by and among Xxxxxxxx Oil & Gas Corp., a Texas corporation (the
"Company"), and each the persons signatory hereto who are all shareholders of
the Company. This Amendment is the first amendment to the Shareholders'
Agreement dated as of May 21, 1996, by and among the Company and all of the
persons and entities who were shareholders of the Company on such date
("Original Agreement"). This Amendment adds as a party to the Original Agreement
one entity which became a holder of the Company's stock after the date of the
Original Agreement. Capitalized terms used and not otherwise defined in this
Amendment have the meanings assigned to them in the Original Agreement. The
Original Agreement, as modified by this Amendment and any subsequent amendments
which may hereafter be executed and delivered by all parties, is hereinafter
designated the "Amended Agreement." Reference is hereby made (i) to that certain
Common Stock and Warrant Purchase Agreement by and between the Company and First
Union Capital Partners, Inc., a Virginia corporation ("First Union"), dated as
of May 30, 1997 (the "Purchase Agreement"), and (ii) to that certain Co-Sale
Agreement by and among First Union, V&C Energy Limited Partnership, a Michigan
limited partnership, and Energy Resource Associates, Inc., a Texas corporation,
dated as of May 30, 1997 (the "Co-Sale Agreement").
SECTION 1. ADDITIONAL SHAREHOLDER. By its signature below, First Union Capital
Partners, Inc. hereby agrees to be bound by the terms of the Original Agreement.
SECTION 2. ACCEPTANCE OF ADDITIONAL PARTIES TO ORIGINAL AGREEMENT. Each of the
parties to the Original Agreement hereby accepts the addition of the entity
listed in Section 1 above as an additional Shareholder, effective as of the date
of this Amendment for all purposes.
SECTION 3. FUTURE ADDITIONAL SHAREHOLDERS. From time to time additional Persons
may become Shareholders and become subject to and bound by the terms of the
Amended Agreement solely by executing and delivering to the Company an
Additional Signature Page to Shareholders' Agreement in the form attached hereto
as Exhibit "A". No further amendment to this Agreement or the Original Agreement
shall be necessary to effect such action.
SECTION 4. ENDORSEMENT OF STOCK CERTIFICATES. All certificates representing
Stock now owned by the Persons listed in Section 1 above shall be endorsed on
the back thereof as required by Section 5 of the Original Agreement as soon as
practicable following execution of this Amendment by all parties. Similarly, all
certificates representing Stock owned by any Person who becomes a Shareholder in
the future by delivering an Additional Signature Page to Shareholders' Agreement
in accordance with Section 3 of this Amendment shall be endorsed on the back
thereof as required by Section 5 of the Original Agreement as soon as
practicable following delivery of such Additional Signature Page to
Shareholders' Agreement.
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SECTION 5. FIRST UNION EXCEPTIONS. Sections 2 and 3 of the Original Agreement
shall not apply to First Union in the event that First Union makes a Disposition
(a) to any of its Affiliates or Subsidiaries (as such terms are defined in the
Purchase Agreement) or employees, (b) pursuant to Article 9 or 10 of the
Purchase Agreement, (c) pursuant to the Co-Sale Agreement, (d) to any person or
entity pursuant to an offering registered under the Securities Act of 1933 or
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act of 1933 (or any successor rule then in effect),
or (e) pursuant to a Cash-Out Transaction (as that term is defined in the
Purchase Agreement).
SECTION 6. MISCELLANEOUS.
(a) This Amendment shall be subject to and governed by the laws of the
State of Texas and each of the parties hereto hereby irrevocably attorns to
jurisdiction and venue in Xxxxxx County, Texas.
(b) This Amendment shall be binding upon and inure to the benefit of the
Company and the Shareholders, and their respective heirs, devisees, Personal
Representatives, successors and permitted assigns.
(c) This instrument and the Original Agreement constitute the entire
agreement of the parties hereto with respect to the ownership of Stock and there
are no other agreements, whether oral or written, among all the parties hereto
with respect to the ownership of such Stock.
(d) The captions of this Amendment are for convenience only and shall not
be considered a part of, nor effect the construction of interpretation of, any
provision of this Agreement.
(e) This Amendment may be executed simultaneously in two or more
counterparts, each of which shall in such event be deemed an original but all of
which together shall constitute one and the same instrument.
/S/ XXXX XXXXXX
XXXX XXXXXX, Trustee
/S/ XXXX XXXXXX
XXXX XXXXXX
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