AGREEMENT FOR ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK
THIS AGREEMENT FOR ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK (the
"Agreement") is entered into effective this 18th day of May 2004, by and among
Itera Holdings BV ("Buyer") and Dune Energy, Inc. ("Seller").
WITNESSETH:
WHEREAS, Seller, Buyer and Vaquero Partners LLC (the "LLC") have entered
into that certain Stock Purchase Agreement dated May 10, 2004, as amended on May
17, 2004 (the "Stock Purchase Agreement");
WHEREAS, pursuant to the Stock Purchase Agreement Buyer will be purchasing
78% of Seller's common stock issued and outstanding immediately after Buyer's
purchase, calculated on an as-converted, fully-diluted basis (the "Purchase
Transaction");
WHEREAS, the number of shares of the common stock of Seller to be received
by the Buyer pursuant to the Stock Purchase Agreement was calculated solely in
reliance of the representations of Seller in Section 3.3 and Schedule 3.3 of the
Stock Purchase Agreement; and
WHEREAS, Seller and Buyer wish to enter into a separate agreement
providing for the issuance to Buyer of additional shares of common stock of
Seller in the event that such representations of Seller are subsequently
discovered to be incorrect or incomplete.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth
and for and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Buyer agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. Issuance of Additional Shares. In the event that either of Buyer or
Seller discovers that there is a discrepancy between (i) the actual number of
shares of Seller's common stock that were issued and outstanding immediately
before the closing of the Purchase Transaction (calculated on an as-converted,
fully-diluted basis assuming full conversion and exercise of all of the Seller's
outstanding convertible or exercisable securities and taking into effect the
shares that Seller was contractually required to issue as of the closing
date)(the "Actual Fully-Diluted Outstanding Shares") and (ii) the
representations made by Seller in Section 3.3 or Schedule 3.3 of the Stock
Purchase Agreement, Seller hereby agrees to issue to Buyer, as soon as
practicable after such discovery, such number of shares as would have been
issued to Buyer as of the closing date of the Purchase Transaction if the Actual
Fully-Diluted Outstanding Shares had been used as the basis for calculating the
number of shares required to be issued to Buyer pursuant to Recital B and
Section 1.1 of the Stock Purchase Agreement.
3. Controlling Agreement. To the extent any provisions contained herein
conflict with the Agreement or any other agreements between Seller, Buyer and
LLC, oral or otherwise, the provisions contained herein shall supersede such
conflicting provisions contained in the Stock Purchase Agreement or other
agreements.
5. Counterparts, Facsimiles. This Agreement may be executed in
counterparts. Each executed counterpart of this Agreement will constitute an
original document, and all executed counterparts, together, will constitute the
same agreement. Any counterpart evidencing signature by one party that is
delivered by telecopy by such party to the other party hereto shall be binding
on the sending party when such telecopy is sent, and such sending party shall
within the days thereafter deliver to the other parties a hard copy of such
executed counterpart containing the original signature of such party or its
authorized representative.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective the
day and year first set forth above.
SELLER:
DUNE ENERGY, INC.
Date: May 18, 2004 By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Its: Chairman and Chief
Executive Officer
BUYER:
ITERA HOLDINGS B.V.
Date: May 18, 2004 By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Its: Authorized Signatory
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