Exhibit 99(d)
SHARE TRANSFER RESTRICTION AGREEMENT
This SHARE TRANSFER RESTRICTION AGREEMENT (the "Agreement"), dated as of
February 28, 2005, is entered into by and between OCM GW Holdings, LLC, a
Delaware limited liability company ("Holdings"), and J. Xxxxxx Xxxxxxxx
("Shareholder").
RECITALS
A. Holdings and GulfWest Energy Inc., a Texas corporation ("Company"), have
entered into a Subscription Agreement of even date herewith (the "Subscription
Agreement"), pursuant to which Holdings has agreed to purchase 81,000 shares of
the Company's Series G Convertible Preferred Stock, par value $0.01 per share
(the "Series G Preferred Stock").
B. As of the date hereof, Shareholder is the record owner and Beneficial
Owner of the number of shares of (a) Class A Common Stock, par value $0.001 per
share, of Company ("Common Stock"), and (b) Cumulative Convertible Preferred
Stock, Series E, par value $0.01 per share, of Company ("Series E Preferred
Stock") as set forth in Schedule I (the "Company Shares").
C. As of the date hereof, Shareholder is the record owner and Beneficial
Owner of (a) 3,000 shares of Series A Cumulative Exchangeable Preferred Stock,
par value $0.01 per share, of GulfWest Oil & Gas Company, a subsidiary of the
Company (the "Series A Preferred Stock"), and (b) warrants and options to
purchase shares of Common Stock; such Common Stock Equivalents (including the
Series E Preferred Stock) that are convertible into or exercisable or
exchangeable for the number of shares of Common Stock set forth in Schedule I.
D. As a condition to its willingness to enter into the Subscription
Agreement, and to induce Holdings to enter into the Subscription Agreement,
Shareholder is willing to agree, to: (a) provide an irrevocable proxy in the
form of Exhibit A; (b) not to transfer any Capital Stock; (c) convert his Series
A Preferred Stock into Series H Convertible Preferred Stock, par value $0.01 per
share, of the Company (the "Series H Preferred Stock") on or before March 15,
2005 as contemplated by the Statement of Resolution for the Series A Preferred
Stock, as amended (the "Conversion Date"); and (d) such other matters as are set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
agreements, representations and warranties herein contained, and intending to be
legally bound hereby, Holdings and Shareholder hereby agree as follows:
1. Definitions. Undefined capitalized terms in this Agreement are defined
in the Subscription Agreement. For this Agreement:
(a) "Beneficially Own," "Beneficial Owner" or "Beneficial Ownership" with
respect to any securities means having voting power or investment power with
respect to such securities (as determined pursuant to Rule 13d-3(a) under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
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Exhibit 99(d)
(b) "Capital Stock" means any and all shares of stock, interests,
participations or other equivalents (however designated) of capital stock of the
Company, and any and all equivalent ownership interests in the Company,
including Common Stock Equivalents and other securities convertible into capital
stock of the Company, Common Stock and any shares of preferred stock of any
series of the Company or its subsidiaries whether now or hereafter authorized.
(c) "Common Stock Equivalents" means (without duplication with any other
shares of Common Stock or Common Stock Equivalents) rights, warrants, options,
convertible securities, or exchangeable securities or indebtedness, or other
rights, exercisable for or convertible or exchangeable into, directly or
indirectly, shares of Common Stock, or securities exercisable for or convertible
or exchangeable into shares of Common Stock, whether at the time of issuance or
upon the passage of time or the occurrence of some future event.
(d) "Oaktree Party" means each of Oaktree Capital Management, LLC, OCM
Principal Opportunities Fund III, L.P., OCM Principal Opportunities Fund IIIA,
L.P., Holdings and any of the respective Permitted Transferees.
(e) "Permitted Transferee" means as to any person or entity, (i) any
general partner or managing member of such person or entity or (ii) any
partnership, limited partnership, limited liability company, corporation or
other entity organized, formed or incorporated and managed or controlled by such
person or entity, its general partner or managing member as a vehicle for
purposes of making investments.
(d) "Termination Date" means the first to occur of (i) the merger of the
Company into a Delaware corporation and wholly owned subsidiary of the Company
(the "Merger") and (ii) the conversion of certain of the shares of the Company's
Series G Preferred Stock into New Preferred Stock (as defined in the
Shareholders Rights Agreement (the "Shareholders Rights Agreement") between
Holdings and the Company, dated the date hereof) in accordance with Section
4.26(d) of the Shareholders Rights Agreement.
2. Irrevocable Proxy. Simultaneously with the execution of this Agreement,
Shareholder will deliver to Holdings a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which will be irrevocable with respect to the Capital
Stock covered thereby. The parties agree that the Proxy is a proxy coupled with
an interest.
3. No Ownership Interest. Nothing contained in this Agreement will be
deemed to vest in Holdings any direct or indirect ownership or incidents of
ownership of or with respect to Capital Stock of which Shareholder is a record
owner or Beneficial Owner. All rights, ownership and economic benefits of and
relating to such Capital Stock will remain and belong to Shareholder, and
Holdings will have no authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of Company or
exercise any power or authority to direct Shareholder in the voting of any of
such Capital Stock, except as otherwise expressly provided herein with respect
to the Capital Stock subject to the Proxy.
4. Covenants, Representations and Warranties of Shareholder. Shareholder
hereby represents, warrants and covenants to Company as follows:
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Exhibit 99(d)
(a) Ownership. As of the date of this Agreement, Shareholder is the record
owner and Beneficial Owner of the issued and outstanding Company Shares.
Schedule I sets forth the number of shares of Common Stock which, as of the date
hereof, Shareholder may become the record owner and Beneficial Owner of pursuant
to the exercise, exchange or conversion of Common Stock Equivalents. As of the
date hereof, the Company Shares constitute all of the issued and outstanding
shares of Common Stock and Series E Preferred Stock owned of record or
Beneficially Owned by Shareholder. Other than the Company Shares, Shareholder
neither has record ownership nor Beneficial Ownership of any other Capital Stock
(except for the Common Stock Equivalents listed in Schedule I). Except as
contemplated by Section 10(i) with respect to Shareholder's spouse, if any,
Shareholder has the sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Capital Stock of the Company
covered hereby, with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Shareholder has the legal capacity, power and
authority to enter into and perform all of Shareholder's obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
Shareholder and constitutes a valid and binding agreement of Shareholder,
enforceable against Shareholder in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
general equitable principles). There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which Shareholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by Shareholder of the transactions contemplated hereby.
(c) No Conflicts. As of the date of this Agreement, except for filings
under the Exchange Act, if applicable, no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by Shareholder and
the consummation by Shareholder of the transactions contemplated hereby, and
none of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby or
compliance by Shareholder with any of the provisions hereof will (i) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Shareholder is a party or by which
Shareholder or any of Shareholder's properties or assets may be bound, (ii)
require any consent, authorization or approval of any Person or (iii) violate
any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to Shareholder or any of the Capital Stock subject to this
Agreement.
(d) No Encumbrances. Except (i) as required by Section 2 and (ii) as
disclosed in Schedule I on the date hereof, and except for the Securities Act
and blue sky laws, at all times during the term hereof, all of the Capital Stock
held of record or Beneficially Owned by Shareholder will be held by Shareholder
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever.
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Exhibit 99(d)
(e) Restriction on Transfer, Proxies and Non-Interference. Except as
otherwise contemplated by the Subscription Agreement or this Agreement, from and
after the date of this Agreement, Shareholder will not, directly or indirectly
without the consent of Holdings, with respect to any Capital Stock now or
hereafter owned of record or Beneficially Owned by Shareholder: (i) offer for
sale, sell, announce the intention to sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to, any Capital Stock, or consent to
the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or
other disposition of, any Capital Stock, (ii) enter into any swap, option,
future, forward or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of any Capital Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Capital Stock, in cash or otherwise, (iii) grant any proxies or powers of
attorney with respect to any Capital Stock, deposit any Capital Stock into a
voting trust or enter into a voting agreement with respect to any Capital Stock,
(iv) enter into any agreement or arrangement providing for any of the actions
described in clause (i), (ii) or (iii) above, (v) take any action that would
reasonably be expected to have the effect of preventing or disabling Shareholder
from performing Shareholder's obligations under this Agreement, or (vi) request
that Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any Capital Stock, except as otherwise
contemplated hereby. With respect to the Capital Stock other than the Series H
Preferred Stock, the obligations of Shareholder under (e) shall terminate
immediately after the Termination Date.
(f) Stop Transfer Order. Shareholder consents to the entry of a stop
transfer order with the transfer agent or agents of the Company's securities
against the transfer of Capital Stock except in compliance with this Agreement
or, if the Company is its own transfer agent with respect to any Capital Stock,
refusal by the Company to transfer any such securities except in compliance with
this Agreement. With respect to the Capital Stock other than the Series H
Preferred Stock, any such stop transfer orders may be removed or refusals to
transfer such Capital Stock on the Company's part pursuant to this Agreement
will cease immediately after the Termination Date.
(g) Restrictive Legend. Certificates evidencing Capital Stock will bear the
following legend(s), as applicable, in addition to those required by the
Securities Act or state blue sky laws:
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO A SHARE TRANSFER
RESTRICTION AGREEMENT PROHIBITING THE TRANSFER OF SUCH
SHARES. THE COMPANY WILL FURNISH A COPY OF SUCH AGREEMENT TO
THE HOLDER HEREOF, WITHOUT CHARGE, UPON WRITTEN REQUEST TO
THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR SUCH OTHER
PLACE AS THE COMPANY MAY DESIGNATE.
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO AN IRREVOCABLE
PROXY. THE COMPANY WILL FURNISH A COPY OF SUCH IRREVOCABLE
PROXY TO THE HOLDER HEREOF, WITHOUT CHARGE, UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR
SUCH OTHER PLACE AS THE COMPANY MAY DESIGNATE.
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Shareholder may request that such legend(s) be removed after the
Termination Date, with respect to certificates representing shares of Capital
Stock other than the Series H Preferred Stock.
(h) Further Assurances. From time to time, at Holding's reasonable request
and without further consideration, Shareholder will perform such further acts
and execute and deliver such additional documents as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement and the Proxy.
5. After-Acquired Capital Stock. The terms and conditions of this Agreement
will apply to any and all Capital Stock acquired by Shareholder after the date
of this Agreement without any further action on the part of Shareholder or
Holdings, including: (i) by purchase or by any other means of acquiring
Beneficial Ownership; and (ii) in connection with any stock dividend and
distribution and any shares into which or for which any or all of the Capital
Stock (or any class thereof) may be changed or exchanged as may be appropriate
to reflect any stock dividend or distribution, or any change in the Capital
Stock (or any class thereof) by reason of any split-up, recapitalization,
combination, merger, exchange of shares or the like. Shareholder shall promptly
notify Holdings of any such events and Schedule I will be amended to reflect any
changes to Shareholder's Capital Stock. With respect to the Capital Stock other
than the Series H Preferred Stock, the provisions of this Section 5 shall
terminate immediately after the Termination Date; except as otherwise set forth
herein the parties agree that this Agreement shall survive the Merger and shall
apply to the surviving Delaware corporation without any further action on the
part of the parties.
6. Shareholder Capacity. Shareholder does not make any agreement or
understanding herein in Shareholder's capacity as a director or officer of
Company. Shareholder executes this Agreement solely in Shareholder's capacity as
a record owner and/or Beneficial Owner of the Capital Stock and nothing herein
will limit or affect any actions taken by Shareholder or any designee of
Shareholder in Shareholder's capacity as an officer or director of Company or
any of its subsidiaries to comply with his fiduciary obligations as an officer
or director of Company.
7. Agreement to Convert Series A Preferred Stock. Effective as of the
Conversion Date, Shareholder agrees to provide written notice to the Company of
its request to convert Shareholder's Series A Preferred Stock to Series H
Preferred Stock pursuant to Section 8 of the Statement of Resolution for the
Series A Preferred Stock (as amended on the date hereof).
8. Mandatory Conversion of Series H Preferred Stock. At any time Holdings
and/or any Oaktree Party converts any or all of the Series H Preferred Stock
owned of record or Beneficially Owned by it into Common Stock, Shareholder shall
be required to convert a number of shares of Series H Preferred Stock
Beneficially Owned by Shareholder into Common Stock in proportion to the number
of shares of Series H Preferred Stock converted by Holdings and such other
Oaktree Parties in relation to their total holdings of Series H Preferred Stock
immediately prior to such conversion. Shareholder shall so convert his shares of
Series H Preferred Stock within 10 days of receiving notice of conversion from
Holdings or such other Oaktree Party.
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Exhibit 99(d)
9. Release.
(a) Shareholder, on his own behalf and on behalf of each of his affiliates
and all of their respective heirs, representatives, successors, and assigns,
hereby releases and forever discharges each Releasee from any and all
liabilities, claims, demands, debts and causes of action, whether known or
unknown, suspected or unsuspected, contingent, unmatured or inchoate, both at
law and in equity, which such Shareholder or any of such Shareholder's
affiliates or any of their respective heirs, representatives, successors or
assigns now has, have ever had or may hereafter have against the respective
Releasees arising contemporaneously with or prior to the Closing (as defined in
the Subscription Agreement) or on account of or arising out of any matter,
cause, or event occurring contemporaneously with or prior to the Closing Date
(as defined in the Subscription Agreement); provided, however, that nothing
contained herein will operate to release (i) any obligations of the Company or
any Oaktree Party arising under this Agreement, (ii) any obligations of the
Company under the Statements of Resolution governing the Series H Preferred
Stock or the Series E Preferred Stock, (iii) any claims for indemnification or
reimbursement related to Shareholder's service as an officer or director of the
Company, or (iv) any claims arising out of the Subscription Agreement or any
document contemplated therein.
(b) Shareholder hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any cause of action, or commencing, instituting or causing
to be commenced, any action, of any kind against any Releasee, based upon any
matter purported to be released hereby.
(c) "Releasee" or "Releasees" means each of the Company, its subsidiaries,
the Oaktree Parties and each of their respective officers, directors, managers,
employees, advisors, attorneys, agents, shareholders, controlling persons,
representatives and affiliates, including in each case those persons and
entities currently in such positions and any persons or entities put in such
positions as a result of the transactions contemplated by the Subscription
Agreement, and each of their respective heirs, successors and assigns.
10. Miscellaneous.
(a) Entire Agreement. This Agreement and each of the Transaction Documents
constitutes the entire agreement and understanding of the parties hereto in
respect of its subject matters and supersedes all prior understandings,
agreements, or representations by or among the parties hereto, written or oral,
to the extent they relate in any way to the subject matter hereof or the
transactions contemplated hereby.
(b) Amendment; Waiver. This Agreement may not be amended or modified, and
no provisions hereof may be waived, without the written consent of Shareholder
and Holdings; provided that no amendment may be made to the provisions of
Section 9 or the provisions of Section 10 affecting such Section without the
consent of each affected Releasee, nor shall any waiver affect Shareholder's
obligations under Section 9 or the provisions of Section 10 affecting such
Section without the consent of each affected Releasee. No action taken pursuant
to this Agreement, including any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representation, warranty, covenant or agreement contained
herein. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. No failure on the
part of any party to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by such party preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
6
(c) Notices. Any notice, request, demand or other communication required or
permitted to be given to a party pursuant to the provisions of this Agreement
will be in writing and will be effective and deemed given under this Agreement
on the earliest of: (a) the date of personal delivery, (b) the date of
transmission by facsimile, with confirmed transmission and receipt, (c) two days
after deposit with a nationally-recognized courier or overnight service such as
Federal Express, or (d) five days after mailing via certified mail, return
receipt requested. All notices not delivered personally or by facsimile will be
sent with postage and other charges prepaid and properly addressed to the party
to be notified at the address set forth for such party:
(i) If to Holdings:
c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: B. Xxxxx Xxxx
Telecopier: (000) 000-0000
with a copy to (which does not constitute notice):
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx
(ii) If to Shareholder:
c/o GulfWest Energy Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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Exhibit 99(d)
(d) Severability. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision hereof will not affect
the validity or enforceability of the other provisions hereof; provided that if
any provision of this Agreement, as applied to any party or to any circumstance,
is adjudged by a court, governmental body, arbitrator not to be enforceable in
accordance with its terms, the parties agree that the court, governmental body,
arbitrator making such determination will have the power to modify the provision
in a manner consistent with its objectives such that it is enforceable, and/or
to delete specific words or phrases, and in its reduced form, such provision
will then be enforceable and will be enforced.
(e) Construction. The parties hereto have jointly participated in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof will arise
favoring or disfavoring any party hereto because of the authorship of any
provision of this Agreement. Any reference to any federal, state, local or
foreign law will also be deemed to refer to such law as amended and all rules
and regulations promulgated thereunder, unless the context otherwise requires.
The words "include," "includes" and "including" will be deemed to be followed by
"without limitation." Pronouns in masculine, feminine and neuter genders will be
construed to include any other gender, and words in the singular form will be
construed to include the plural and vice versa, unless the context otherwise
requires. The words "this Agreement," "herein," "hereof," "hereby," "hereunder"
and words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The parties hereto intend
that each representation, warranty and covenant contained herein will have
independent significance. If any party hereto has breached any representation,
warranty or covenant contained herein in any respect, the fact that there exists
another representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which such party has
breached, will not detract from or mitigate the fact that such party is in
breach of the first representation, warranty or covenant.
(f) Arbitration. Any and all claims, counterclaims, demands, causes of
action, disputes, controversies, and other matters in question arising out of or
relating to this Agreement or in any way relating to the subject matter of this
Agreement or the relationship between the parties hereto created by this
Agreement, involving the parties hereto or their respective representatives
("Disputes") even though all or some of the Disputes allegedly are
extra-contractual in nature, whether such Disputes sound in contract, tort or
otherwise, at law or in equity, under state, provincial or federal law, for
damages or any other relief will be resolved as follows: first, Shareholder and
representatives of Holdings will meet to attempt to resolve such Dispute. If the
Dispute cannot be resolved by agreement of the parties hereto, any party may at
any time make a written demand for binding arbitration of the Dispute in
accordance with this Section provided that the foregoing shall not preclude
equitable or other judicial relief to enforce the provisions hereof or to
preserve the status quo pending resolution of Disputes; and provided further
that resolution of Disputes with respect to claims by third Persons will be
deferred until any judicial proceedings with respect thereto are concluded.
Subject to the provisions of this Section, Shareholder and Holdings will agree
upon the rules of the arbitration prior to the arbitration and based upon the
nature of the Dispute; provided that to the extent that the parties hereto
cannot agree on the rules of the arbitration, then the Commercial Arbitration
Rules of the American Arbitration Association in effect on the date hereof, and
except as the applicable rules are modified by this Agreement, will apply. As a
minimum set of rules in the arbitration the parties hereto agree as follows:
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Exhibit 99(d)
(i) To the extent the claims asserted are in excess of $4.0 million, the
arbitration will be held before a panel of three arbitrators consisting of one
arbitrator selected by Shareholder, the other selected by Holdings, and the
third then selected by those two arbitrators (such third arbitrator to be
neutral). If agreement cannot be reached on a third arbitrator within 30 days of
the need therefor, the Chief Judge of the U.S. District Court for the Southern
District of Texas shall appoint an arbitrator. If the claims asserted are less
than $4.0 million, the Chief Judge of the U.S. District Court for the Southern
District of Texas shall appoint a sole arbitrator. All arbitrators shall be
attorneys with at least ten years experience in oil and gas transactions.
(ii) The arbitrator(s) will deliver their decision in writing within 20
days after the termination of the arbitration hearings.
(iii) The non-prevailing party will bear the costs and fees of the
arbitration.
(iv) The arbitrator(s) final decision will be in writing but will not
specify the basis for their decision, the basis for the damages award or the
basis of any other remedy. The arbitrator(s)' decision will be considered as a
final and binding resolution of the disagreement, will not be subject to appeal
and may be entered as an order in any court of competent jurisdiction in the
United States; provided that this Agreement confers no power or authority upon
the arbitrator(s) (i) to render any decision that is based on clearly
erroneously findings of fact, (ii) that manifestly disregards the law, or (iii)
that exceeds the powers of the arbitrator(s), and no such decision will be
eligible for confirmation. Each party hereto agrees to submit to the
jurisdiction of any such court for purposes of the enforcement of any such
order. No party will xxx the other except for enforcement of the arbitrator(s)'
decision if the other party is not performing in accordance with the
arbitrator(s)' decision. The provisions of this Agreement will be binding on the
arbitrator(s).
(v) Any arbitration proceeding will be conducted on a confidential basis.
(vi) Any arbitration proceeding shall be held in Houston, Texas.
(vii) Any arbitration proceeding, including discovery, shall be conducted
in accordance with the Texas Rules of Civil Procedure and the Texas Rules of
Evidence.
(g) Remedies Cumulative. The parties shall have all remedies for breach of
this Agreement available to them as provided by law or equity. Without limiting
the generality of the foregoing, the parties agree that in addition to any other
rights and remedies available at law or in equity, the parties shall be entitled
to obtain specific performance of the obligations of each party to this
Agreement and immediate injunctive relief and that, in the event any action or
proceeding is brought in equity or to enforce the same, no party will urge, as a
defense, that there is an adequate remedy at law. No single or partial assertion
or exercise of any right, power or remedy of a party hereunder shall preclude
any other or further assertion or exercise thereof.
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Exhibit 99(d)
(h) No Third Party Beneficiaries. Except as otherwise set forth in this
Agreement, all representations, warranties, covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. Nothing in this Agreement shall create or be
deemed to create any third-party beneficiary rights in any Person not a party to
this Agreement. The Company is expressly made a third party beneficiary of
Section 7 and the Releasees are expressly made third party beneficiaries of
Section 9.
(i) Spouse. Shareholder and his spouse, if any, by their execution of this
Agreement, (a) evidence that they are fully aware of, understand and fully
consent and agree to the provisions of this Agreement and its binding effect
upon any community property or similar marital property interest in the Capital
Stock that they may now or hereafter own and (b) agree that termination of their
marital relationship for any reason shall not have the effect of removing any
such Capital Stock otherwise subject to this Agreement from coverage hereof.
Shareholder further agrees that he shall cause his spouse (and any subsequent
spouse), if any, to execute and deliver a Joinder Agreement in the form of
Exhibit B.
(j) Governing Law. This Agreement and the performance of the transactions
and the obligations of the parties hereunder will be governed by and construed
and enforced in accordance with the laws of the State of Texas, without giving
effect to any choice of law principles.
(k) Descriptive Headings. The section and subsection headings contained in
this Agreement are inserted for convenience only and will not affect in any way
the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
(m) Successors and Assigns. This Agreement and the rights and obligations
of the parties hereunder shall inure to the benefit of, and be binding upon,
their respective successors, assigns and legal representatives.
(n) Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement or any other agreement or
document to be executed or delivered pursuant hereto, the prevailing party shall
be entitled to reasonable attorneys' fees, costs, and disbursements in addition
to any other relief to which such party may be entitled.
(o) Adjustments for Stock Splits, Etc. Wherever in this Agreement there is
a reference to a specific number of shares of Capital Stock of any class or
series, then, upon the occurrence of any subdivision, combination or stock
dividend of such class or series of stock, the specific number of shares so
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Exhibit 99(d)
referenced in this Agreement will automatically be proportionally adjusted to
reflect the effect of such subdivision, combination or stock dividend on the
outstanding shares of such class or series of stock.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Shareholder and a duly authorized officer of Holdings on the day and year
first written above.
HOLDINGS:
OCM GW HOLDINGS, LLC
By: OCM Principal Opportunities Fund III, L.P., its
managing member
By: OCM Principal Opportunities Fund III GP, LLC, its
general partner
By: Oaktree Capital Management, LLC, its managing member
By:/s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
SHAREHOLDER:
/s/ J. Xxxxxx Xxxxxxxx
----------------------------------------------
J. Xxxxxx Xxxxxxxx, in his individual capacity
Signature Page to Share Transfer Restriction Agreement
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SCHEDULE I
Part A
------------------------------------------------
Company Shares
------------------------------------------------
------------------------------------------------
Common Stock: 9,545,229
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------------------------------------------------
Series E Preferred Stock: 9,000
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Part B
------------------------------------------------------------ ---------------------------------------------------------
Common Stock Equivalents Number of Shares of Common Stock Issuable upon
Conversion or Exercise
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
625,000 Warrants 625,000
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
20,000 Options 20,000
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
9,000 shares of Series E Preferred Stock 2,250,000
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
3,000 shares of Series A Preferred Stock 4,285,714
------------------------------------------------------------ ---------------------------------------------------------
13
EXHIBIT A
IRREVOCABLE PROXY
The undersigned, a shareholder of GulfWest Energy Inc., a Texas corporation
(the "Company"), hereby irrevocably appoints each of OCM GW Holdings, LLC, a
Delaware limited liability company ("Holdings"), and B. Xxxxx Xxxx and Xxxxxxx
X. Xxxxx, executive officers of Holdings, and each of them as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to:
a) the number of shares of Class A common stock, par value $0.001 per share
(the "Common Stock"), and the Cumulative Convertible Preferred Stock, Series E
(the "Series E Preferred Stock"), of the Company (collectively, "Beneficial
Common Stock") listed on the final page of this irrevocable proxy;
b) any shares of the Beneficial Common Stock acquired by the undersigned by
purchase or by any other means of acquiring Beneficial Ownership (as defined
below), including the conversion or exchange of any securities of the Company
(including the H Shares (as defined)) or any of its subsidiaries into or for
shares of Beneficial Common Stock, on or after the date of this irrevocable
proxy and on or before the Reincorporation Date (as defined below);
c) any shares of the Series H Preferred Stock, par value $0.01 per share
(the "Series H Preferred Stock" and, together with the Beneficial Common Stock,
the "Company Stock"), of the Company, acquired by the undersigned by purchase or
by any other means of acquiring Beneficial Ownership, including the conversion
or exchange of any securities of the Company or any of its subsidiaries into or
for shares of Series H Preferred Stock, on or after the date of this irrevocable
proxy and on or before the Termination Date; and
d) any shares of Company Stock acquired after the date of this irrevocable
proxy and on or before the Reincorporation Date or Termination Date, as
applicable, in connection with any stock dividend and distribution and any
shares into which or for which any or all of Company Stock (or any class
thereof) may be changed or exchanged as may be appropriate to reflect any stock
dividend or distribution, or any change in the Company Stock (or any class
thereof) because of any split-up, recapitalization, combination, merger,
exchange of shares or the like with respect to such shares of the Company Stock;
in each case Beneficially Owned by the undersigned (collectively, the
"Shares" and, with respect to the Series H Preferred Stock, or such class or
series of stock which it may be changed into or exchanged for pursuant to (d) by
merger or otherwise, when referred to individually, the "H Shares"). For
purposes of this irrevocable proxy, "Beneficially Own," "Beneficial Owner" or
"Beneficial Ownership" with respect to any securities will mean having voting
power or investment power with respect to such securities (as determined
pursuant to Rule 13d-3(a) under the Securities Exchange Act of 1934, as
amended), including pursuant to any agreement, arrangement or understanding,
whether or not in writing.
THIS IRREVOCABLE PROXY IS IRREVOCABLE AND IS COUPLED WITH AN INTEREST. It
is granted pursuant to the Share Transfer Restriction Agreement between the
undersigned and Holdings, dated the date hereof, and is granted in consideration
of Holdings entering into the Subscription Agreement (the "Subscription
Agreement"), dated the date hereof, with the Company. Upon the execution hereof,
all prior proxies given by the undersigned with respect to the Shares are hereby
revoked and no subsequent proxies will be given.
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The attorneys and proxies named above will be empowered at any time on or prior
to the first to occur of (i) the merger of the Company into a Delaware
corporation and wholly owned subsidiary of the Company (the "Merger") and (ii)
the conversion of certain of the shares of the Company's Series G Convertible
Preferred Stock (the "Series G Preferred Stock") into New Preferred Stock (as
defined in the Shareholders Rights Agreement (the "Shareholders Rights
Agreement") between Holdings and the Company, dated the date hereof) in
accordance with Section 4.26(d) of the Shareholders Rights Agreement (the
"Reincorporation Date"), to vote (or cause to be voted) all of the Shares, at
any annual, special or other meeting of the shareholders of the Company or
series thereof, and at any adjournment or adjournments thereof, or pursuant to
any consent in lieu of a meeting or otherwise (to the extent such class or
series of Shares is entitled to a vote thereon under applicable law or the
Company's articles of incorporation), in favor of (i) the Merger, or, (ii) if
the Merger is not consummated by December 31, 2005, the conversion of certain of
the Series G Preferred Stock into New Preferred Stock (as defined in the
Shareholders Rights Agreement) in accordance with Section 4.26(d) of the
Shareholders Rights Agreement (collectively the "Reincorporation").
The attorneys and proxies named above will be empowered, at any time on
or prior to the conversion into common stock of all the H Shares received or to
be received (the "Termination Date") in exchange for the undersigned's Series A
Preferred Stock of GulfWest Oil & Gas Company, to vote (or cause to be voted)
all of the H Shares, at any annual, special or other meeting of the shareholders
of the Company or class, and at any adjournment or adjournments thereof, or
pursuant to any consent in lieu of a meeting or otherwise (to the extent the
Series H Preferred Stock is entitled to a vote thereon under applicable law or
the Company's articles of incorporation), (i) in favor of the Reincorporation as
provided for the immediately preceding paragraph, and (ii) in such a manner as
determined by such attorneys and proxies in their sole and absolute discretion
with respect to any and all matters on which such securities are entitled to
vote on or consent with respect to as a class. The undersigned may not vote the
H Shares (or provide a written consent) on any matter relating to the Merger or
on which the H shares may vote as a class. Except for (i) these provisions shall
survive the Merger and shall apply with respect to the surviving Delaware
corporation and its capital stock without any further action on the part of the
undersigned.
Any obligation of the undersigned hereunder will be binding upon the
successors and assigns of the undersigned.
9,545,229 Number of shares of the Common Stock that are Beneficially Owned
by the undersigned and subject to this irrevocable proxy pursuant to subsection
(a) above.
9,000 Number of shares of the Series E Preferred Stock that are
Beneficially Owned by the undersigned and subject to this irrevocable proxy
pursuant to subsection (a) above.
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Dated: February 28, 2005
Signature of Shareholder: /s/ J. Xxxxxx Xxxxxxxx
----------------------
Name of Shareholder: J. Xxxxxx Xxxxxxxx
16
EXHIBIT B
JOINDER AGREEMENT
This Joinder Agreement (this "Joinder Agreement") is executed by the
undersigned spouse ( "Spouse") of J. Xxxxxx Xxxxxxxx ("Shareholder") pursuant to
the terms of that Share Transfer Restriction Agreement between OCM GW Holdings,
LLC ("Holdings") and Shareholder (as may be amended from time to time, the
"Agreement"). By the execution of this Joinder Agreement, Spouse agrees as
follows:
1. Joinder. Spouse hereby agrees to be bound by the terms and conditions of
the Agreement to the same extent as if Spouse had executed the Agreement as an
original party thereto. Nothing contained herein shall be deemed to relieve
Shareholder from any liability or obligation incurred thereunder.
2. Representations and Warranties. The covenants, representations and
warranties set forth in Section 4 of the Agreement are incorporated herein
mutatis mutandis, and Spouse hereby makes and agrees to such covenants,
representations and warranties as of the date of this Joinder Agreement (except
as to the first two sentences of Section 4(a) where Shareholder represents and
warrants as to both record ownership and Beneficial Ownership, to the extent
Spouse may not have record ownership, or become record owner of, Capital Stock
owned of record or that would be owned of record by Shareholder).
3. Notice. Any notice required as permitted by the Agreement shall be given
to the Spouse at the address listed below Spouse's signature below.
4. Definitions. Undefined capitalized terms in this Joinder Agreement are
defined in the Agreement.
5. Counterparts. This Joinder Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
6. Governing Law. This Joinder Agreement shall be governed by the laws of
the State of Texas, without reference to the principles of conflicts of law
thereof.
17
EXECUTED AND DATED this _____ day of February ___, 2005.
[SPOUSE]
By:____________________
Name:
Address:
Attention:
Telecopy:
Agreed to and accepted by Holdings:
OCM GW HOLDINGS, LLC
By:______________________
Name:
Title:
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