EXHIBIT 10.2
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "Agreement") is made and entered into
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as of September 21, 1999, by and among Inland Resources Inc. a Washington
corporation (the "Issuer"), Inland Holdings LLC, a California limited liability
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company ("Holdings"), Trust Company of the West, a California trust company, as
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Sub-Custodian for Mellon Bank for the benefit of Account No. CPFF 873-3032
("Fund V"), Joint Energy Development Investments II Limited Partnership, a
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Delaware limited partnership ("JEDI" and together with Holdings, the
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"Purchasers"), Pengo Securities Corp., a Delaware corporation ("Pengo"), Xxxxx
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Energy Partnership, a New York general partnership ("SEP"), Xxxxxxx X. Xxxxx,
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Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxxx Xxxxx, Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx
(collectively, the "Xxxxx Individuals") (Pengo, SEP, and the Xxxxx Individuals,
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together with any of their respective affiliates, the "Xxxxx Group").
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W I T N E S S E T H
WHEREAS, Fund V is presently the holder of $75 million in principal
amount of junior secured debt of Inland Production Company, a Texas corporation
("IPC"), plus accrued interest to the date hereof (principal and interest
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collectively, the "Fund V Debt"), and TCW Portfolio No. 1555 DR V Sub-Custody
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Partnership, L.P., a California limited partnership ("Portfolio," and
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collectively with Fund V, "TCW") is presently the holder of warrants (the
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"Portfolio Warrants") to purchase 158,512 shares of the common stock, par value
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$.001 per share of Issuer. The Portfolio Warrants together with the Fund V Debt
shall be referred to collectively herein as the "TCW Securities;"
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WHEREAS, JEDI is presently the holder of 100,000 shares of the
Issuer's Series C Preferred Stock, plus accumulated dividends to the date hereof
(the "JEDI Securities");
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WHEREAS, Fund V and Portfolio are members of Holdings;
WHEREAS, the Issuer, IPC, Inland Refining, Inc., a Utah corporation
("Refining," and together with Issuer and IPC, the "Companies"), TCW and
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Purchasers have entered into an exchange agreement dated as of even date
herewith (the "Exchange Agreement") whereby (i) TCW will exchange its entire
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interest in the TCW Securities for the issuance to Holdings of (a) 10,757,747
shares of the Issuers' Series D Preferred Stock, (b) 5,882,901 shares of the
Issuer's Series Z Preferred Stock and (c) 11,642,949 shares of the Issuer's
Common Stock (such Series D Preferred Stock, Series Z Preferred Stock and Common
Stock of the Issuer issued to Holdings, the "Holdings New Securities"); and (ii)
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JEDI will exchange its entire interest in the JEDI Securities for (a) 121,973
shares of the Issuer's Series E Preferred Stock and (b) 2,920,975 shares of the
Issuer's Common Stock (such Series E Preferred Stock and Common Stock issued to
JEDI, the "JEDI New Securities")(such transactions hereinafter referred to as
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the "Exchange");
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WHEREAS, the Xxxxx Group presently owns 5,712,071 shares (the "Xxxxx
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Securities") of the Issuer's Common Stock, as more specifically set forth on
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Schedule A hereto
(such schedule setting forth the record holder and number of such shares held by
each member of the Xxxxx Group);
WHEREAS, the execution of this Agreement is a condition to closing of
the Exchange Agreement;
WHEREAS, the Purchasers and the Xxxxx Group desire to make certain
provisions regarding, among other things, the election of directors of the
Issuer and the transfer of shares of capital stock of the Issuer:
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, conditions and agreements contained
herein, the parties hereto, intending to be legally bound by the terms hereof,
agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the following
meanings, and capitalized terms not otherwise defined herein have the meaning
assigned to them in the Exchange Agreement as in effect on the date hereof.
"Affiliate" or "affiliate" shall mean, with respect to any Person, any
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other Person directly or indirectly controlling, controlled by or under direct
or indirect common control with such Person and, with respect to Fund V or
Holdings, any Person which is a participant in or beneficiary of Fund V or
Holdings, respectively. For purposes of this definition, "control" shall mean
the power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise); the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing. Notwithstanding the foregoing, no
individual shall be deemed to be an affiliate of a corporation solely by reason
of his or her being an officer or director of such corporation.
"Authorization" shall have the meaning ascribed to such term in
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Section 5.2.
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"Board" or "Board of Directors" shall mean the board of directors of
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the Issuer.
"Commission" shall mean the United States Securities and Exchange
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Commission or any other similar or successor agency of the federal government
administering the Securities Act.
"Common Stock" shall mean the common stock of the Issuer, par value
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$.001 per share.
"Drag-Along Party" or "Drag-Along Parties" shall have the meaning
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ascribed to such terms in Section 4.
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"Drag-Along Shares" shall have the meaning ascribed to such term in
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Section 4.
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"Drag-Along Transaction" shall have the meaning ascribed to such term
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in Section 4.
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"Holder" or "Holders" shall mean the Persons holding any of the
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Securities, either individually or collectively as the context so requires.
"Merger Transaction" shall mean any merger, reorganization or other
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business combination with any Person other than an affiliate where the Issuer is
not the surviving entity.
"Person" shall mean any individual, corporation, partnership, limited
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liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof.
"Preferred Stock" shall mean the authorized preferred stock of the
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Issuer, par value $.001 per share.
"Preferred Stock Designation" shall mean the amendment to the Articles
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of Incorporation of the Issuer, setting forth the terms of the Series D
Preferred Stock, Series E Preferred Stock and Series Z Preferred Stock.
"Prior Agreements" means those certain registration rights agreements
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set forth on Schedule 3.2(c) to the Exchange Agreement and that certain Tagalong
Agreement dated July 21, 1997 by and among JEDI and Pengo.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any successor Federal statute and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"Securities" shall mean the Xxxxx Securities, the JEDI New Securities,
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the Holdings New Securities and any shares of Common Stock issued upon
conversion of the Series Z Preferred Stock.
"Series C Preferred Stock" shall mean the Series C Cumulative
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Convertible Preferred Stock of the Issuer, par value $.001 per share.
"Series D Preferred Stock" shall mean the Series D Redeemable
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Preferred Stock of the Issuer, par value $.001 per share.
"Series E Preferred Stock" shall mean the Series E Redeemable
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Preferred Stock of the Issuer, par value $.001 per share.
"Series Z Preferred Stock" shall mean the Series Z Convertible
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Preferred Stock of the Issuer, par value $.001 per share.
"Tag Transaction" shall have the meaning ascribed to such term in
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Section 3.1.
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"Tagalong Party" or "Tagalong Parties" shall have the meaning ascribed
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to such terms in Section 3.1.
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"Transfer" shall have the meaning ascribed to such term in Section 2.
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"Transferor" shall have the meaning ascribed to such term in Section
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3.1.
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"Transferee" shall have the meaning ascribed to such term in Section
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3.1.
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"Voting Stock" shall mean the capital stock of any class or classes of
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the Issuer, including, without limitation, the Common Stock, the Series D
Preferred Stock, the Series E Preferred Stock and the Series Z Preferred Stock,
the holders of which are entitled to participate generally in the election of
the members of the Issuer's Board, and any securities of the Issuer convertible
into, or exercisable or exchangeable for, any such capital stock of the Issuer.
SECTION 2. RIGHT TO TRANSFER
Except as provided in Section 3 or 4 herein, Purchasers shall have the
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right to freely sell, assign, transfer, give away or dispose of (any of the
foregoing being hereinafter referred to as a "Transfer") their respective
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interests in the Securities, whether in whole or in part, to any Person without
restriction other than as set forth in Section 7.1 of the Exchange Agreement.
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Subject to applicable securities laws, any restrictive legends on certificates
evidencing the Xxxxx Securities and any agreements governing or restricting
transfer of the Xxxxx Securities, the members of the Xxxxx Group may transfer
their respective interests in the Securities, whether in whole or in part, to
any Person without restriction.
SECTION 3. TAGALONG RIGHTS
3.1 If Holdings or any affiliate thereof ("Transferor") transfers,
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other than in an offering pursuant to a registration statement or pursuant to
Rule 144 (or any successor provision) under the Securities Act, any shares of
Common Stock or Series Z Preferred Stock held by such Transferor to any Person
SEP is the legal and beneficial holder of the Xxxxx Securities
as set forth on Schedule A hereto next to its name. SEP has neither previously
sold, assigned, conveyed, transferred or otherwise disposed of, in whole or in
part, its securities constituting all or a portion of the Xxxxx Securities, nor,
as of the date hereof, has entered into any agreement to sell, assign,
other than an affiliate of Holdings (a "Transferee") in one transaction or a
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series of related transactions, which transfer or transfers constitute the
Transfer of a majority of the shares of Common Stock and Series Z Preferred
Stock held by Holdings and its affiliates as of the date hereof (a "Tag
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Transaction"), then each of the Xxxxx Group and JEDI (each a "Tagalong Party,"
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and collectively, the "Tagalong Parties") shall have the right to sell to the
Transferee, on the same terms and conditions as provided with respect to the
sale by the Transferor to the Transferee, up to the number of shares of Common
Stock (rounded to the nearest whole share) equal to the product of (i) the total
number of shares of Common Stock which such Tagalong Party then owns and (ii) a
fraction with a numerator equal to the number of shares of Common Stock and
Series Z Preferred Stock then being sold by the Transferor and a denominator
equal to the total number of shares of Common Stock and Series Z Preferred Stock
owned by the Transferor. The right of the Transferor to sell shall be subject to
the condition that the Transferor shall cause the Transferee that proposes to
purchase the shares of the Transferor to offer to purchase, on such terms, such
number of shares from the Tagalong Parties; provided, however, that if the
Transferee is for any reason unwilling or unable to purchase the aggregate
number of shares from the Transferor together with the Tagalong Parties desiring
to Transfer shares in such transaction, then the number of shares to be sold by
each shall be proportionally reduced (based on the total number of shares
originally proposed to tag along or be sold) to such number as, when taken with
the number of shares to be sold by each other such party, shall be equal to the
number of shares which such Transferee is willing or able to purchase (provided
that such Transfer shall comply with the first sentence of this Section 3.1).
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Each Tagalong Party shall
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only be entitled to sell shares of Common Stock under this Section 3 that it
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owns as of the date hereof; securities acquired after the date hereof in any
manner shall not be subject to the tagalong rights provided in this Section 3.
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3.2 The Transferor shall give written notice to the Tagalong Parties
at least fifteen (15) business days prior to any proposed Transfer(s) of Common
Stock or Series Z Preferred Stock constituting a Tag Transaction. The notice
shall specify the proposed Transferee, the number of shares of Common Stock
and/or Series Z Preferred Stock to be sold, the amount and type of consideration
to be received therefor, and the place and date on which the sale is to be
consummated. If either, or both, of the Tagalong Parties desire to include
shares of Common Stock in such sale pursuant to Section 3.1, such Tagalong Party
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shall notify the Transferor not more than ten (10) business days after its
receipt of the notice from Transferor.
3.3 The tagalong rights set forth in this Section 3 shall not be
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transferable or assignable by JEDI or by members of the Xxxxx Group, other than,
in each case, to their respective affiliates.
SECTION 4. DRAG-ALONG.
4.1 If Transferor sells, other than in a public offering pursuant to
a registration statement or pursuant to Rule 144 (or any successor provision)
under the Securities Act, shares of Common Stock and/or Series Z Preferred Stock
held by such Transferor to a Transferee in one transaction or a series of
related transactions which constitute the transfer of a majority of the then
outstanding shares of Common Stock and Series Z Preferred Stock of the Issuer,
Holdings and/or its affiliates may, at their option, cause each of the members
of the Xxxxx Group and JEDI (either party, and any affiliate thereof, being a
"Drag-Along Party" and collectively, the "Drag-Along Parties") to sell to the
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Transferee, on the same terms and conditions as provided with respect to the
sale by Transferor to such Transferee, up to the number of shares of Common
Stock (rounded to the nearest whole share) equal to the product of (i) the total
number of shares of Common Stock which such Drag-Along Party then owns and (ii)
a fraction with a numerator equal to the number of shares of Common Stock and
Series Z Preferred Stock then being sold by the Transferor and a denominator
equal to the total number of shares of Common Stock and Series Z Preferred Stock
owned by the Transferor (such shares being "Drag-Along Shares" and such
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transaction being a "Drag-Along Transaction"); provided however, that: (v)
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Transferor shall only be entitled to drag along shares of Common Stock under
this Section 4 that the Drag-Along Party or Parties own as of the date hereof
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(securities acquired after the date hereof in any manner shall not be subject to
the drag-along rights provided in this Section 4); (w) Transferor may not
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receive more than the liquidation preference, plus accrued dividends thereon,
for the Series D Preferred Stock sold in a Drag-Along Transaction; (x) the price
for the Drag-Along Shares may not be lower than the price paid to other common
stockholders in the same or related transaction; (y) the consideration for the
Drag-Along Shares shall be paid in cash unless the relevant Drag-Along Party
consents to payment in a form other than cash; and (z) if the Drag-Along
Transaction is a Merger Transaction, the provisions of this Section 4.1 shall
not apply to the Common Stock held by JEDI unless the Series E Preferred Stock
then held by JEDI is redeemed in cash as of or prior to the effective date of
the Merger Transaction.
4.2 If any of the Drag-Along Parties proposes to Transfer to any of
its affiliates
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any of the Common Stock held by such Drag-Along Party, then such Drag-Along
Party, as a condition to the exercise of such right of Transfer, shall cause
such Transferee to agree to be bound by this Section 4. The drag-along rights
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set forth in this Section 4 shall not be applicable to transferees of the Drag-
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Along Parties other than to their respective affiliates.
4.3 To exercise a drag-along right, Transferor shall give written
notice to the Drag-Along Party or Parties against whom the right is to be
enforced at least fifteen (15) business days prior to any proposed Transfer of
Common Stock and/or Series Z Preferred Stock. The notice shall specify the
terms of such Transfer and certify as to the facts supporting exercise of the
drag-along right. The Drag-Along Parties shall have ten (10) business days
after receipt of such notice (the "Drag-Along Notice Period") before such
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parties shall be required to Transfer their shares to the Transferee. During
the Drag-Along Notice Period the Drag-Along Party or Parties in receipt of such
notice may not Transfer any Securities subject to Transferor's drag-along rights
under this Section 4 to any Person other than Transferor.
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SECTION 5. BOARD OF DIRECTORS REPRESENTATION; AUTHORIZATION AND
CONVERSION.
5.1 Board of Directors Representation. From and after the date
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hereof, each of Holdings, JEDI, the members of the Xxxxx Group and any of their
respective affiliates who hold Voting Stock shall vote their respective shares
of voting stock (including any shares of Voting Stock hereafter acquired, owned
or controlled by such Holder), at any regular or special meeting of shareholders
of the Issuer called for the purpose of filling positions on the Board, or in
any written consent executed in lieu of such a meeting of shareholders, and
shall otherwise take all actions necessary to ensure that (i) the Board consists
of six (6) members, and (ii) that one (1) individual shall be designated for
election to the board by the holders of Common Stock and Series Z Preferred
Stock. Each of JEDI and Holdings agrees that neither it nor its respective
affiliates shall vote their respective shares of Common Stock and Series Z
Preferred Stock then owned by such parties in the election of the individual to
be elected to the Board by the holders of the Common Stock and the Series Z
Preferred Stock pursuant to clause 5.1(ii) above so long as such respective
party or its affiliates hold Series D Preferred Stock or Series E Preferred
Stock and the Xxxxx Group continues to hold 10% or more of the combined
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outstanding shares of Common Stock and Series Z Preferred Stock; provided,
however, that if Holdings and its affiliates shall not at such time hold Series
D Preferred Stock entitling it and its affiliates to elect four (4) members to
the Board, then Holdings may vote an amount of its Common Stock in the election
of directors in proportion to its reduction in number of directors it (and its
affiliates) are then entitled to appoint pursuant to the terms of the Series D
Preferred Stock. By way of example only, if Holdings (and its affiliates) may at
the time of an election elect only one (1) member to the Board pursuant to the
terms of their Series D Preferred Stock, then Holdings (and its affiliates)
shall be entitled to vote seventy-five percent (75%) of their Common Stock in
the election of directors by holders of the Common Stock. Each member of the
Xxxxx Group agrees that it will not vote its respective shares of Common Stock
for the election of directors so long as the Xxxxx Group continues to hold 10%
or more of the combined outstanding shares of Common Stock and Series Z
Preferred Stock; provided, further, that, notwithstanding the foregoing, if the
Xxxxx Group does not for any reason vote its respective shares of Common Stock
for the election of directors, then both Holdings and JEDI and their affiliates
may vote their Common Stock and
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Series Z Preferred Stock for the election of any director elected by holders of
Common Stock, in addition to directors that may be elected by holders of the
Series D Preferred Stock or the Series E Preferred Stock.
5.2 Authorization and Conversion. Until such time as all shares of
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Series Z Preferred Stock is converted into Common Stock, each of Holdings, each
of the members of the Xxxxx Group and JEDI, and each of their respective
affiliates and transferees, agree to vote their shares of Voting Stock at the
Issuer's next meeting of shareholders in favor of and otherwise cause the Issuer
to increase the number of shares of Common Stock authorized for issuance such
that the total number of authorized shares of Common Stock of the Issuer is
greater than or equal to the sum of (a) the number of outstanding shares of
Common Stock, (b) the number of shares required to convert to Common Stock all
outstanding shares of the Series Z Preferred Stock as provided in the Preferred
Stock Designation after giving effect to the Exchange, and (c) the number of
shares of Common Stock reserved for issuance pursuant to warrants and options
authorized for issuance under the Issuer's existing stock option plans or
agreements (the "Authorization") so that the Issuer can thereupon automatically
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convert the Series Z Preferred Stock to Common Stock as provided in the
Preferred Stock Designation. As soon as reasonably possible after obtaining the
Authorization, the Issuer shall cause the prompt filing of an amendment to the
Issuer's Articles of Incorporation with the Secretary of State of Washington to
give effect to the Authorization.
SECTION 6. WAIVER OF ANTI-TAKEOVER RIGHTS
To the extent permitted by law, each of JEDI and its affiliates and
each of the members of the Xxxxx Group and their affiliates, expressly waive all
rights and claims against Fund V, Holdings or the Issuer or otherwise with
respect to the transactions contemplated by the Exchange Agreement or any future
or subsequent transactions under any anti-takeover statutes of applicable law
including, but not limited to, Chapter 19 of the Washington Business Corporation
Act (RCW 23B.19.010 - 19.050).
SECTION 7. REPRESENTATIONS AND WARRANTIES; CONSENT TO EXCHANGE
Each member of the Xxxxx Group, respectively, hereby represents,
warrants and covenants as follows:
7.1 Pengo is the legal and beneficial holders of the Xxxxx Securities
as set forth on Schedule A hereto next to its name. Pengo has neither previously
sold, assigned, conveyed, transferred or otherwise disposed of, in whole or in
part, its securities constituting all or a portion of the Xxxxx Securities, nor,
as of the date hereof, has entered into any agreement to sell, assign, convey,
transfer or otherwise dispose of, in whole or in part, such securities.
7.2 SEP is the legal and beneficial holder of the Xxxxx Securities
as set forth on Schedule A hereto next to its name. SEP has neither previously
sold, assigned, conveyed, transferred or otherwise disposed of, in whole or in
part, its securities constituting all or a portion of the Xxxxx Securities, nor,
as of the date hereof, has entered into any agreement to sell, assign,
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convey, transfer or otherwise dispose of, in whole or in part, such securities.
7.3 Xxxxxxx X. Xxxxx is the legal and beneficial holder of the Xxxxx
Securities as set forth on Schedule A hereto next to his name. Xxxxxxx X. Xxxxx
has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, his securities constituting all or a portion
of the Xxxxx Securities, nor, as of the date hereof, has entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or
in part, such securities.
7.4 Xxxxxxx X. Xxxxx is the legal and beneficial holder of the Xxxxx
Securities as set forth on Schedule A hereto next to his name. Xxxxxxx X. Xxxxx
has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, his securities constituting all or a portion
of the Xxxxx Securities, nor, as of the date hereof, has entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or
in part, such securities.
7.5 Xxxxxxx Xxxxxxx Xxxxx is the legal and beneficial holder of the
Xxxxx Securities as set forth on Schedule A hereto next to her name. Xxxxxxx
Xxxxxxx Xxxxx has neither previously sold, assigned, conveyed, transferred or
otherwise disposed of, in whole or in part, her securities constituting all or a
portion of the Xxxxx Securities, nor, as of the date hereof, has entered into
any agreement to sell, assign, convey, transfer or otherwise dispose of, in
whole or in part, such securities.
7.6 Xxxx X. Xxxxx is the legal and beneficial holder of the Xxxxx
Securities as set forth on Schedule A hereto next to his name. Xxxx X. Xxxxx has
neither previously sold, assigned, conveyed, transferred or otherwise disposed
of, in whole or in part, his securities constituting all or a portion of the
Xxxxx Securities, nor, as of the date hereof, has entered into any agreement to
sell, assign, convey, transfer or otherwise dispose of, in whole or in part,
such securities.
7.7 Xxxxxx X. Xxxxxx is the legal and beneficial holder of the Xxxxx
Securities as set forth on Schedule A hereto next to his name. Xxxxxx X. Xxxxxx
has neither previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, his securities constituting all or a portion
of the Xxxxx Securities, nor, as of the date hereof, has entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or
in part, such securities.
7.8 Each of Pengo, SEP, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx
Xxxxxxx Xxxxx, Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx, by signing this Agreement,
hereby consent, individually, and collectively as holders of a majority of the
Common Stock of the Issuer, to the transactions constituting, or entered into in
connection with, the Exchange.
SECTION 8. SPECIAL PURCHASE RIGHTS
Each time Holdings, Fund V or Portfolio (or any of their
affiliate transferees of Holdings' securities acquired under the Exchange
Agreement) endeavor to purchase shares of Common Stock from any Person not a
party hereto other than from an affiliate, Holdings shall
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offer to buy, for the same price and on the same terms and conditions, a
proportionate number (based on the percentages set forth in Schedule A hereto or
such other percentages as specified in any subsequent notice) of shares of
Common Stock from each member of the Xxxxx Group and JEDI equal in aggregate
amount to the amount Holdings, Fund V or Portfolio endeavor to purchase or the
total number of shares of Common Stock then held by members of the Xxxxx Group
and JEDI, whichever is less, based on the number of shares of Common Stock to be
purchased by Holdings, Fund V or Portfolio (or their affiliate transferees). If
any offer pursuant to this Section 8 is not accepted, in writing, within five
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(5) business days by any member of the Xxxxx Group or JEDI, such offer shall be
deemed rejected and Holdings shall have no further obligations pursuant to this
Section 8 with respect to such member of the Xxxxx Group or JEDI and that
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particular purchase of Common Stock by Holdings, Portfolio and/or Fund V (and/or
their affiliate transferees).
SECTION 9. MISCELLANEOUS
9.1 Successors and Assigns; Termination
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Except as otherwise expressly provided herein, this Agreement shall inure
to the benefit of and be binding upon the permitted successors and assigns of
the parties hereto; provided, however, as to any particular Securities, this
Agreement shall terminate and not apply when such Securities are no longer held
by any members of the Xxxxx Group, the Purchasers or their respective
affiliates; provided further that the provisions of Section 5.2 shall apply to
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Securities until all outstanding Series Z Preferred Stock is converted to Common
Stock; and provided further, that the provisions of Section 8 shall apply to
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Holdings, Fund V and Portfolio regardless of their holdings of Securities.
Nothing herein shall be construed to prohibit any future holder of the
Securities from assuming the rights and obligations under this Agreement.
9.2 Amendment and Waiver, etc
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This Agreement may be amended, and the observance of any term of this
Agreement may be waived only with the written consent of all parties adversely
effected or impacted by such waiver or amendment. No failure or delay on the
part of any of the parties in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the parties at law or in equity or otherwise.
9.3 Counterparts
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Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
9.4 Severability
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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 provision
in every other respect and of the remaining provisions
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contained herein shall not be affected or impaired thereby.
9.5 Specific Performance
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The parties recognize that money damages may be inadequate to compensate for
a breach of the obligations hereunder, and irrevocably agree that the remedy of
specific performance or the granting of such other equitable remedies as may be
appropriate may be granted in order to afford the parties the benefits of this
Agreement and the parties shall not object and waive any right to object to such
remedies on the grounds that money damages will not be sufficient to compensate
for a breach hereof.
9.6 Notices. All communications under this Agreement shall be in
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writing and shall be effective (a) upon hand delivery or delivery by telecopy or
facsimile, if delivered on a business day during normal business hours where
such notice is to be received or (b) on the second business day following the
date of mailing by first class mail, postage prepaid or by express or courier
service, fully prepaid or upon actual receipt of such mailing, whichever shall
first occur :
(i) if to any party hereto at its address for notice specified beneath its
name on the signature page hereof, or at such other address as it may
have furnished in writing to the Issuer; or
(ii) if to any other Person who is the registered holder of any Preferred
Stock, to the address for the purpose of such holder as it appears in
the stock ledger of the Issuer.
9.7 Governing Law. This Agreement shall be construed in accordance
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with and governed by the law of the State of Washington.
9.8 Prior Agreement. Upon execution of this Agreement by the parties
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hereto, the Prior Agreements shall be automatically terminated as of the date
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement as of the day and year first above written.
INLAND RESOURCES INC.,
a Washington corporation
By: \s\ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Co-Chief Executive Officer
Address for Notices:
000 00/xx/ Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INLAND HOLDINGS LLC, a California limited
liability company,
By: TRUST COMPANY OF THE WEST, a California trust
company, as Sub-Custodian for Mellon Bank for the
benefit of Account No. CPFF 873-3032, Member
By: \s\ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Managing Director
By: \s\ Xxxx XxxXxxxx
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Xxxx XxxXxxxx
Senior Vice President
By: TCW PORTFOLIO NO. 1555 DR V SUB-
CUSTODY PARTNERSHIP, L.P., a California
limited partnership, Member
By: TCW ROYALTY COMPANY V, a California
corporation, Managing General Partner
By: \s\ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxxx
Managing Director
Address for Notices:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copies To:
TCW Asset Management Company
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx XxxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Milbank, Tweed, Xxxxxx & XxXxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00/xx/ Xxxxx
00
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13
TRUST COMPANY OF THE WEST,
a California trust company, as Sub-Custodian for
Mellon Bank for the benefit of Account No. CPFF
873-3032
By: \s\ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxxx
Managing Director
By: \s\ Xxxx XxxXxxxx
-------------------------------------------------
Xxxx XxxXxxxx
Senior Vice President
Address for Notices:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copies To:
TCW Asset Management Company
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx XxxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Milbank, Tweed, Xxxxxx & XxXxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14
JOINT ENERGY DEVELOPMENT
INVESTMENTS II LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Enron Capital Management II Limited
Partnership, its General Partner
By: Enron Capital II Corp., its General Partner
By: \s\ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx
Vice President
Address for Notices:
Enron North America Compliance Department
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/4946
15
PENGO SECURITIES CORP., a Delaware corporation
By: \s\ Xxxxx Xxxxxxx
----------------------------------------------
Xxxxx Xxxxxxx
Address for Notices:
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
16
XXXXX ENERGY PARTNERSHIP, a New York general
partnership
By: Xxxxx Management LLC,
a New York limited liability company,
its General Partner
By: \s\ Xxxxx Xxxxxxx
----------------------------------------------
Xxxxx Xxxxxxx
Address for Notices:
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
\s\ Xxxxxxx X. Xxxxx
-------------------------------------------------
XXXXXXX X. XXXXX, an individual
Address for Notices:
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
\s\ Xxxxxxx X. Xxxxx
--------------------------------------------------
XXXXXXX X. XXXXX, an individual
Address for Notices:
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
\s\ Xxxxxxx Xxxxxxx Xxxxx
--------------------------------------------------
XXXXXXX XXXXXXX XXXXX, an individual
Address for Notices:
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
\s\ Xxxx X. Xxxxx
-------------------------------------------------
XXXX X. XXXXX, an individual
Address for Notices:
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
\s\ Xxxxxx X. Xxxxxx
--------------------------------------------------
XXXXXX X. XXXXXX, an individual
Address for Notices:
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19
Schedule A
----------
Shares of Common Stock of the Issuer Held By Members of the Xxxxx Group and JEDI
after giving effect to the Exchange
Holder Shares of Common Stock Xxxxx Group Share
------ ---------------------- ------------------
Percentage
----------
Pengo Securities Corp.* 4,029,269 46.67%
Xxxxx Energy Partnership* 152,220 1.76
Xxxxxxx X. Xxxxx* 874,410 10.13
Xxxxxxx X. Xxxxx* 163,735 1.90
Xxxxxxx Xxxxxxx Xxxxx* 108,000 1.25
Xxxx X. Xxxxx* 163,735 1.90
Xxxxxx X. Xxxxxx* 220,702 2.56
JEDI 2,920,975 33.83
Total 8,633,046 100%
----- --------- -----
* members of the Xxxxx Group
20
