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EXHIBIT 10(k)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of the
2nd day of October, 1996 by and between Denbury Resources, Inc. ("Company") and
TPG Partners, L.P. ("Buyer").
W I T N E S S E T H
WHEREAS, the Company is offering 3,600,000 of its Common Shares
("Common Shares"), no par value, to the public in an offering ("Public
Offering") through a syndicate of underwriters ("Underwriters"); and
WHEREAS, concurrent with and conditioned upon the closing of the
Public Offering, the Company desires to sell to Buyer, and Buyer desires to
purchase from Company, 800,000 of the Company's Common Shares (the "Shares")
pursuant to a registered offering on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
1.1 PURCHASE AND SALE OF SHARES. Subject to the conditions set
forth in Section 1.3 hereof, the Company agrees to sell the Shares to Buyer and
Buyer agrees to purchase the Shares from the Company, on the terms and
conditions set forth in this Agreement.
1.2 PURCHASE PRICE. The purchase price per Share for the Shares
shall be 93.5% of the price per share of the Common Shares to the public in the
Public Offering, as set forth in the final prospectus relating to the Public
Offering; provided, however, that such purchase price shall be subject to
approval by the Toronto Stock Exchange ("TSE"). In the event that the TSE does
not approve the purchase price of 93.5% of the Public Offering price, the
purchase price of the Shares shall be 100% of the price per share to the public
in the Public Offering.
1.3 CONDITIONS PRECEDENT. The Company's obligation to sell and
Buyer's obligation to buy the Shares is subject to and conditioned upon (i) the
closing of the Public Offering, (ii) the effectiveness of a Registration
Statement relating to the TPG Offering, and (iii) the delivery to Buyer of a
final prospectus relating to the TPG Offering.
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1.4 CLOSING. The purchase and sale of the Shares shall be
consummated at a closing to be held simultaneously with the closing of the
Public Offering, or at such other date as the parties shall agree. At the
closing, the following documents shall be exchanged:
A. In payment of the purchase price for the Shares,
Buyer shall deliver immediately available funds to the Company by wire
transfer to NationsBank of Texas, N.A., ABA #______, Account No.______,
Memo: For the Account of Denbury Resources Inc.
B. The Company shall deliver the certificate(s)
representing the Shares to Buyer.
C. Buyer and the Company shall execute and deliver each
to the other at the closing a cross receipt for the certificate(s)
representing the Shares and the funds representing the purchase price
of the Shares, respectively.
1.5 ASSIGNMENT TO AFFILIATES. Buyer may assign all or any portion
of its rights to purchase the Shares under this Agreement to any one of its
affiliates having TPG GenPar, L.P., as its general partner, including TPG
Parallel I, L.P.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF BUYER
2.1 INFORMED INVESTOR. Buyer holds the position of an affiliate
of the Company for the purpose of Rule 144 promulgated pursuant to the
Securities Act of 1933 (the "Act"), and by reason of such position has access
to substantial information regarding the Company's finances, properties, assets
and liabilities, and business prospects. Such information is sufficient to
permit Buyer to make an informed investment in the Shares.
2.2 SOPHISTICATED INVESTOR. By reason of Buyer's business and
financial experience (and the business and financial experience of any persons
retained by Buyer to advise him with respect to his investment in the Shares),
Buyer (together with such advisers, if any) has such knowledge, sophistication
and experience in business and financial matters as to be capable of evaluating
the merits and risks of the investment in the Shares.
2.3 NO DISTRIBUTION INTENT. Buyer represents to the Company that
it is not acquiring the Shares with a view to, nor does it have any current
intent to engage in, a distribution of the Shares. Buyer acknowledges that as
an affiliate under Rule 144, Buyer may only resell the Shares in accordance
with the applicable terms and conditions of Rule 144 (other than Rule 144(d)),
including restrictions on the volume of Shares that may be resold and the
manner of sale.
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2.4 AUTHORITY; NO CONSENT. Upon execution and delivery by Buyer,
this Agreement will constitute the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms. Buyer has the
absolute and unrestricted right, power, and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement. Buyer is
not and will not be required to obtain any consent from any person in
connection with the execution and delivery of this Agreement or the
consummation or performance of any of the transactions contemplated hereby.
2.5 NO VIOLATION. Buyer represents and warrants that neither the
execution and performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with, or result in a breach
of the terms, conditions and provisions of, or constitute a default under, its
organizational documents, any agreement, indenture or other instrument under
which it is bound, or (ii) violate or conflict with any judgment, decree,
order, statute, rule, regulation or administrative proceedings or lawsuits,
pending or threatened, of any court or any public, governmental or regulatory
agency or body having jurisdiction over him or his properties or assets.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SHARES. The Shares will be duly authorized and when issued in
accordance with this Agreement and upon the payment of the purchase price set
forth in Section 1.2 hereof, will be duly and validly issued, fully paid and
nonassessable and the Company will deliver an opinion of Jenkens & Xxxxxxxxx, a
Professional Corporation, to that effect at the closing.
3.2 AUTHORITY; NO CONSENT. Upon the execution and delivery by the
Company of this Agreement, this Agreement will constitute the legal, valid, and
binding obligation of the Company, enforceable against it in accordance with
its terms. The Company has the absolute and unrestricted right, power, and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement. The Company is not and will not be required to obtain
any consent from any person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the transactions
contemplated hereby.
ARTICLE 4
MISCELLANEOUS
4.1 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements, and
understandings relating to the subject matter hereof.
4.2 NOTICES. All notices, payments and other required
communications ("Notices") to the parties shall be in writing, and shall be
addressed, respectively, as follows:
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IF TO COMPANY: Denbury Resources Inc.
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
IF TO BUYER: TPG Partners, L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxx X. X'Xxxxx
All Notices shall be given (i) by personal delivery, or (ii) by electronic
communication, with a confirmation sent by registered or certified mail, return
receipt requested, or (iii) by registered or certified mail, return receipt
requested. All Notices shall be deemed delivered (i) if by personal delivery,
on the date of delivery if delivered during normal business hours, and, if not
delivered during normal business hours, on the next business day following
delivery, (ii) if by electronic communication, on the date of receipt of the
electronic communication, and (iii) if solely by mail, on the date of deposit
of the mailing in an official U.S. post office mail depository. A party may
change its address by Notice to the other party.
4.3 APPLICABLE LAW AND VENUE. All questions concerning the
construction, validity and interpretation of this Agreement shall be governed
by the internal laws, and not the law of conflicts, of the State of Texas. Any
legal action relating to this Agreement shall be brought only in a court of
competent jurisdiction in Dallas County, Texas or in the United States District
Court for the Northern District of Texas, Dallas Division.
4.4 ATTORNEY'S FEES. If any legal action is brought by any party
hereto, it is expressly agreed that the prevailing party in such legal action
shall be entitled to recover from the other party reasonable attorneys' fees in
addition to any other relief that may be awarded. For the purposes of this
Section, the "prevailing party" shall be the party in whose favor final
judgment is entered. In the event that declaratory or injunctive relief alone
is granted, the court may determine which, if either, of the parties is the
prevailing party. The amount of reasonable attorneys' fees shall be determined
by the court.
4.5 WAIVER. The failure of a party to insist on the strict
performance of any provision of this Agreement or to exercise any right, power
or remedy upon a breach hereof shall not constitute a waiver of any provision
of this Agreement or limit the party's right thereafter to enforce any
provision or exercise any right.
4.6 SEVERABILITY. If any term, provision, covenant, or
restriction of this Agreement is held by the final, nonappealable order of a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, provisions, covenants, and restrictions hereof shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated.
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4.7 AMENDMENTS. This Agreement may be amended, modified, or
superseded only by written instrument executed by all parties hereto.
4.8 HEADINGS. The Article and Section headings appearing in this
Agreement are for convenience of reference only and are not intended, to any
extent or for any purpose, to limit or define the text of any Article or
Section.
4.9 GENDER AND NUMBER. Whenever required by the context, as used
in this Agreement, the singular number shall include the plural and the neuter
shall include the masculine or feminine gender, and vice versa.
4.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which together
shall constitute one agreement binding on all parties hereto, notwithstanding
that all the parties have not signed the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
Company: DENBURY RESOURCES INC.
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx
Chief Financial Officer
Buyer: TPG PARTNERS, INC.
By: TPG GenPar, L.P.
its General Partner
By: TPG Advisors, Inc.
its General Partner
By: /s/ XXXXX X. X'XXXXX
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Xxxxx X. X'Xxxxx
Vice-President
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