EXHIBIT 7.8
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") dated as of May 26, 2000, is by
and between the investors that are signatories hereto (each an "Investor" and
collectively, the "Investors") and Wiser Investment Company, LLC, a Delaware
limited liability company ("WIC").
RECITALS
A. The Wiser Oil Company, a Delaware corporation ("Wiser"), and WIC have
entered into an Amended and Restated Stock Purchase Agreement (the "Stock
Purchase Agreement") dated December 13, 1999, pursuant to which Wiser has agreed
to sell and WIC has agreed to purchase not less than 600,000 and not more than
1,000,000 shares of Wiser's Series C Cumulative Convertible Preferred Stock (the
"Preferred Shares").
B. Pursuant to Section 9.12(c) of the Stock Purchase Agreement, Wiser and
WIC have agreed that, with the prior written consent of the Company, WIC may
assign its rights with respect to a portion of the Preferred Shares (which
assignment shall include an assignment of a corresponding part of WIC's rights,
interests and obligations, including WIC's representations and warranties) to
not more than eight accredited investors, provided that each investor expressly
agrees to assume such rights, interests and obligations.
C. The Investors, Wiser and WIC have entered into (i) an Adoption
Agreement (the "Adoption Agreement"), dated as of the date hereof, whereby the
Investors have agreed to expressly assume part of the rights, interests and
obligations of WIC under the Stock Purchase Agreement and (ii) a Stockholder
Agreement (the "Stockholder Agreement"), dated as of the date hereof.
D. In consideration of WIC's agreement to assign its rights to the
Investors with respect to a portion of the Preferred Shares, the Investors have
agreed to vote the Preferred Shares (subject to the limitations provided for in
Section 1.2 hereof) in favor of any proposals recommended by WIC that are
submitted to a vote of the stockholders of Wiser.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto agree as follows:
1. Agreement.
1.1 Revocation of Previous Voting Agreements. The rights granted
under this Agreement shall revoke any other voting rights granted by the
Investors at any time with respect to
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the Preferred Shares and no subsequent proxies will be given by the Investors
with respect to the Preferred Shares while this Agreement is in effect.
1.2 Agreement to Vote in Favor of Proposals Recommended by WIC. At
any meeting of Wiser's stockholders, the Investors agree to vote the Preferred
Shares in favor of any proposals recommended by WIC; provided, however, that the
Investors shall not be obligated to vote the Preferred Shares in accordance with
this Agreement, and may cast a vote in their sole discretion, with respect to
the merger, consolidation, reorganization, bankruptcy, liquidation,
recapitalization or sale of substantially all of the assets of Wiser, such
matters being collectively referred to herein as the "Excluded Matters."
1.3 Nomination of Director. For so long as Investor holds at least
350,000 Preferred Shares, Investor shall be entitled to nominate one Purchaser
Designee (as defined in Section 2.1 the Stockholder Agreement) to serve on the
Board of Directors of Wiser; provided, however, that Investor shall have no
rights under this Section 1.3 for so long as Xxxxxx X. Xxxxxx, Xx. serves on the
Board of Directors of Wiser.
1.4 Demand Registration Rights. WIC agrees, upon written notice from
any Investor holding at least 350,000 Preferred Shares, to effect that
Investor's demand registration rights pursuant to Section 3.1 of the
Stockholders Agreement, subject to the restrictions contained in that agreement.
2. Proxy with Respect to Preferred Shares. Except with respect to the
Excluded Matters, each Investor hereby irrevocably appoints WIC as its attorney-
in-fact and proxy, with full power of substitution, to attend any and all
meetings of the stockholders of Wiser and any adjournments thereof, to execute
any and all written consents of stockholders of Wiser, to vote in such manner as
such attorney and proxy or its substitute shall, in its sole discretion, deem
proper, and otherwise act with respect to all of the Preferred Shares that each
Investor is entitled to vote at any meeting of stockholders (whether annual or
special and whether or not an adjourned meeting) of Wiser. If subsequent to the
date hereof the Investors are entitled to vote the Preferred Shares on any
matters, other than the Excluded Matters, the Investors shall take all actions
necessary to vote the Preferred Shares pursuant to instructions received from
WIC on any of such matters.
3. Representations and Warranties of Investors. Each Investor represents
and warrants to WIC as follows:
3.1 Power; Binding Agreement. Each Investor has the full legal
right, power and authority to enter into and perform all of such Investor's
obligations under this Agreement. The execution and delivery of this Agreement
by each Investor has been authorized by such Investor and will not violate any
other agreement to which such Investor is a party, including without limitation,
any voting agreement, stockholders' agreement, voting trust or proxy. This
Agreement has been duly executed and delivered by each Investor and constitutes
a legal, valid and binding agreement of each
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Investor, enforceable in accordance with its terms. Neither the execution nor
delivery of this Agreement nor the consummation by the Investors of the
transactions contemplated hereby will (i) require any consent or approval of or
filing with any governmental or other regulatory body, except for any necessary
filings under the Securities Exchange Act of 1934, as amended, or (ii)
constitute a violation of, conflict with or constitute a default under, any
contract, commitment, agreement, understanding, arrangement or other restriction
of any kind to which the Investors are a party or by which the Investors are
bound.
3.2 Absence of Certain Agreements. Other than the transactions
contemplated by the Stock Purchase Agreement, the Investors are not a party to
or bound by any agreement, letter of intent or similar agreement (whether
written or oral) with any party other than WIC or Wiser whereby the Investors
have agreed to support, directly or indirectly, any proposal or offer (whether
or not in writing and whether or not delivered to the stockholders of Wiser
generally) for a merger or other business combination involving Wiser or to
acquire in any manner, directly or indirectly, a material equity interest in,
any voting securities of, or a substantial portion of the assets of Wiser.
4. Termination. This Agreement (other than Section 1.3, Section 1.4 and
Section 5) shall terminate on the earliest of:
(a) the date on which WIC and the Investors mutually consent to terminate
this Agreement in writing;
(b) the date on which WIC reduces its ownership in Wiser by more than 50%
of WIC's initial investment in Wiser; or
(c) five years from the date hereof.
5. Expenses. Each party hereto will pay all of its expenses in
connection with the preparation, execution and performance of this Agreement.
6. Certain Covenants of Investors.
6.1 Limitations on Transfer of the Preferred Shares. With respect to
any proposed transfers of the Preferred Shares, the Investors agree to comply
with the provisions of Article IV of the Stockholder Agreement.
6.2 No Action Without Written Consent of WIC. Investors agree, while
this Agreement is in effect, that they will not vote at a meeting of the
stockholders of Wiser or take any action by written consent of stockholders in
lieu of such a meeting on any matter, other than the Excluded Matters, that is
subject to this Agreement without the prior written consent of WIC.
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6.3 Notices. All notices or other communications required or
permitted hereunder shall be in writing (except as otherwise provided herein)
and shall be deemed duly given when received by delivery in person, by telecopy
or by certified mail, postage prepaid, or by an overnight courier service,
addressed as follows:
If to WIC:
Wiser Investment Company, LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Telecopy: (000) 000-0000
with copies to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to Investors:
Attention:
Telecopy:
with copies to:
Attention:
Telecopy:
7. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
contained herein and supersedes all prior agreements and understandings between
the parties with respect to such subject matter. This Agreement may not be
modified, amended, altered or supplemented except by an agreement in writing
executed by the party against whom such modification, amendment, alteration or
supplement is sought to be enforced.
8. Assigns. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor
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any of the rights, interests or obligations hereunder shall be assigned by
either of the parties hereto, except in accordance with Article IV of the
Stockholder Agreement. This provision shall not apply to any underlying common
shares that have been issued upon the conversion of the Preferred Shares and (i)
the sale of which has been registered pursuant to the Securities Act of 1933 and
which shares have been sold pursuant to such registration, or (ii) which have
been sold to the public pursuant to Rule 144 under the Securities Act of 1933.
9. Governing Law. This Agreement, and all matters relating hereto, shall
be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of laws or choice
of laws thereof.
10. Specific Performance; Injunctive Relief. The parties agree that in
the event of a breach of any provision of this Agreement, the aggrieved party
may be without an adequate remedy at law. The parties therefore agree that in
the event of a breach of any provision of this Agreement, the aggrieved party
may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this Agreement and
such aggrieved party may take any such actions without the necessity of posting
a bond. By seeking or obtaining such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be
entitled.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
12. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable such provision shall be
interpreted to be only so broad as is enforceable.
13. Further Assurances. Each party hereto shall execute and deliver such
additional documents as may be reasonably necessary or desirable to carry out
the provisions of this Agreement.
14. Third Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the parties hereto any
legal or equitable right, remedy or claim under or by reason of this Agreement
or any provision contained herein.
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IN WITNESS WHEREOF, WIC and Investors have each executed or caused this
Agreement to be executed by its duly authorized officer as of the date and year
first above written.
WISER INVESTMENT COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Manager
INVESTORS
DIMELING, XXXXXXXXX AND PARK
/s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
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