RIGHT OF CO-SALE AGREEMENT
This Right of Co-Sale Agreement (this "Agreement") dated as of November 4,
1997, is by and among Xxx Xxxxxx (together with any Affiliates, the
"Shareholder") and Enron Capital & Trade Resources Corp., a Delaware
corporation (the "Investor"). This Right of Co-Sale Agreement supersedes and
replaces that certain Right of Co-Sale Agreement between the parties dated as of
September 25, 1997 (the "Superseded Right of Co-Sale Agreement").
WITNESSETH:
WHEREAS, the Shareholder and the Investor are the owners of common stock
(the "Common Stock") or Series A Preferred Stock (the "Preferred Stock;"
together with all other capital stock of the Corporation, the "Securities") of
Crown Energy Corporation (the "Corporation"); and
WHEREAS, the Corporation and the Investor are parties to that certain Stock
Purchase Agreement dated as of September 25, 1997 (the "Stock Purchase
Agreement"), and as a condition of the Investor becoming a party to the Stock
Purchase Agreement, the Shareholder executed the Superseded Right of Co-Sale
Agreement; and
WHEREAS, the parties desire to clarify that this Agreement includes all of
the Preferred Stock acquired or to be acquired by Investor pursuant to the Stock
Purchase Agreement (and therefore all of such Preferred Stock is included in the
term "Preferred Stock"); and
WHEREAS, certain capitalized terms used herein shall have the meanings
assigned to them in the Stock Purchase Agreement; and
WHEREAS, the parties hereto agree that the success of the Corporation
requires the active interest and support of the Shareholder and the Investor and
therefore desire to promote the best interests of the Corporation and their
mutual interests by imposing certain requirements with respect to the
transferability of the Securities of the Corporation owned by the parties
hereto;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the parties hereby agree as follows:
ARTICLE I
RIGHT OF CO-SALE
SECTION 1. Right of Co-Sale. The Shareholder agrees that he shall not
Sell any Securities or any interest therein to any Person, except in accordance
with the terms of this Agreement, for a period of five (5) years from the date
hereof (the "Restrictive Period").
1.1 "Sale", "Sell" or "Sold" shall mean and include any sale, gift or
other form of transfer, conveyance, disposal or encumbrance, whether voluntary
or involuntary, including any dividend or distribution and the pledging of any
security, and whether direct or indirect or alone or in a series of related
transactions.
1.2 Before the expiration of the Restrictive Period, if the
Shareholder receives a good faith, non-collusive offer to purchase such
Securities (an "Offer") which the Shareholder desires to accept, the Shareholder
shall first give written notice ("Notice") to the Investor as provided below.
1.3 The Notice shall be sent to the Investor in compliance with the
terms of this Agreement and shall set forth:
(1) the number of Securities and the interest therein that the
Shareholder desires to Sell;
(2) the name of any proposed purchaser (the "Offeror") and a
description of the Offer,
(3) the cash consideration per share to be received by the
Shareholder in connection with the Offer, or if the consideration is other than
cash or partly in cash and partly in the form of other consideration, the nature
of the other consideration to be received (with a reasonable description
thereof) and the other material terms and conditions of such proposed Sale; and
(4) the address of the Shareholder at which the Investor may give
any notice required herein.
1.4 The Investor shall have fifteen (15) days after receipt of the
Notice to notify the Shareholder as to its decision to exercise rights of co-
sale hereunder (the "Acceptance Period"). The Investor will include in such
notice the number of Securities that the Investor wishes to Sell in the Sale
contemplated by the Offer (the "Sale Transaction").
(1) Upon receiving notice that the Investor has opted to exercise
its rights of co-sale hereunder, the Shareholder shall use his best efforts to
interest the Offeror in purchasing all of the Securities designated by the
Investor as well as those proposed to be Sold by the Shareholder. If the Offeror
does not wish to purchase all of the Securities with respect to which the
Investor has exercised rights of co-sale, Section 1.4(b) hereof shall govern.
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(2) If the Offeror does not wish to purchase all of the
Securities with respect to which the Investor has exercised rights of co-sale
hereunder, the Investor may participate in the Sale Transaction by selling all
or part of its pro-rata share of Securities to the proposed purchaser (the
"Participating Shares") on the terms contemplated by the Offer, along with the
pro-rata share of the Shareholder's Securities. For purposes of this Section, a
party's pro-rata share means, with respect to each party participating in the
Sale Transaction, the proportion (expressed as a percentage) that its ownership
of Securities (calculated, in the case of Preferred Stock, with respect to the
number of shares of Common Stock into which the Preferred Stock may be
converted) bears to the aggregate number of Securities (calculated, in the case
of Preferred Stock, with respect to the number of shares of Common Stock into
which the Preferred Stock may be converted) that the Shareholder and Investor
desire to Sell in the Sale Transaction.
SECTION 2. Certain Exempt Transactions.
2.1 The rights of the Investor under Section 1 hereof shall not apply
to any Sale of the Shareholder's Securities which does not involve at least:
(1) fifty percent (50%) of the Securities owned by the
Shareholder; and
(2) more than fifty percent (50%) of the outstanding Securities
of the Company, calculated by taking into consideration the number of shares of
Common Stock into which any outstanding Preferred Stock may be converted.
IN WITNESS WHEREOF, signed as of the date first written above.
INVESTOR:
ENRON CAPITAL & TRADE
RESOURCES CORP.
By: /s/ J. Xxxxx XxXxxxxxxx
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Name: J. Xxxxx XxXxxxxxxx
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Title: Vice President
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SHAREHOLDER:
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
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