EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
(STOCKHOLDERS)
BETWEEN
XXXXXX OIL CORPORATION
XXXXXX PETROLEUM, INC.
AND CERTAIN
STOCKHOLDERS OF
XXXXXX PETROLEUM, INC.
PARTY HERETO
Dated as of June 30, 1994
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"'), dated as of June 30,
1994, by and between DelMar Petroleum, Inc., a Delaware corporation ("DPI"),
Xxxxxx Oil Corporation, a Delaware corporation (the "Purchaser"), and each of
the Stockholders of DPI who executes a counterpart of this Agreement and
delivers an executed copy of this Agreement to Purchaser and DPI prior to the
end of the Election Period.
Purchaser has entered into a Stock Purchase Agreement dated as of June
30, 1994 (the "DPI Agreement") with DPI, providing, among other things, for
the sale by DPI to Purchaser of up to 66,000 shares of Common Stock (as
hereinafter defined) of DPI and warrants to purchase 9,400 shares of Common
Stock. Pursuant to this Agreement, Purchaser will, if the closing occurs
under the DPI Agreement, (a) purchase from certain stockholders of DPI all of
the shares of Common Stock and warrants held by such stockholders concurrently
with the closing under the DPI Agreement and (b) agree, for the period
provided herein, to purchase from certain stockholders of DPI the shares of
Common Stock and warrants held by such stockholders after the closing under
the DPI Agreement, all on the terms and conditions set forth herein.
ARTICLE I
DEFINITIONS
Capitalized terms used herein shall have the meanings ascribed to them
in this Article I unless such terms are defined elsewhere in this Agreement:
Closing: As defined in Section 2.03
Closing Date: As defined in Section 2.03
Common Stock: The only class of Common Stock, par value $1.00 per
share, of DPI to be outstanding at and following the
Closing, as provided in the DPI Agreement.
DPI Agreement: The Stock Purchase Agreement dated as of June 30,
1994, between Purchaser and DPI providing, among
other things, for the sale by DPI to Purchaser of up
to 66,000 shares of Common Stock of DPI and warrants
to purchase 9,400 shares of Common Stock.
DPI Closing: The closing under the DPI Agreement.
Election Period: The period commencing on the date this Agreement is
mailed to the Stockholders and ending at the close
of business on the twentieth (20th) day after such
date.
Elf Subsidy
Agreement: The Contract dated effective August 1, 1991 between
Elf Exploration, Inc., DOI and DPI, whereby Elf
Exploration, Inc. agreed to certain supplemental
matters in connection with the sale of XxxXxx
Operating, Inc. to DPI.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Holder: As set forth in Section 7.02.
Interests: As set forth in Section 9.04(a)
Major Stockholder: The Other Stockholders who are parties to the
Prior Stockholder Agreement.
Notice of Exercise: As set forth in Section 6.02
Other Stockholder: Each holder of Common Stock that (a) executes a
copy of this Agreement other than as a Selling
Stockholder and (b) delivers an executed copy of
this Agreement to Purchaser and DPI prior to the
end of the Election Period. Any such holder shall
cease to be an Other Stockholder at such time as
such holder no longer owns any shares of Common
Stock.
Prior Stockholder
Agreement: The Purchase Agreement dated as of December 11, 1991
among XxxXxx Petroleum, Inc., Xxxx Xxxxxxx Mutual
Life Insurance Company, Colton Gulf Coast, Inc.,
NIPSCO Fuel Company, Inc. and Baralonco Exploration,
Inc. pursuant to which DPI issued securities to each
of such other parties.
Prior Warrants: The warrants to purchase shares of Common Stock
issued pursuant to the Prior Stockholder Agreement
Public Offering: As set forth in Section 7.02.
Purchase Price: As defined in Section 2.02.
Purchaser Stock: Common Stock, par value $.01 per share, of the
Purchaser.
Registration
Expenses: As set forth in Section 7.04.
Registrable Stock: As set forth in Section 7.02.
SEC: As set forth on Section 7.02.
Securities Act: The Securities Act of 1933, as amended.
Selling
Stockholder: Each holder of Common Stock that (a) executes a copy
of this Agreement as a "Selling Stockholder" on the
signature pages hereto and (b) delivers an executed
copy of this Agreement to Purchaser and DPI prior to
the end of the Election Period.
Stockholder: A Selling Stockholder or an Other Stockholder.
Subsidiary: With respect to any person or entity (the "first
party") any corporation or other entity the
securities (or other ownership interests) of which
having ordinary voting power to elect a majority of
the board of directors or other persons performing
similar functions are directly or indirectly owned
by the first party.
Voting Agreement: The Agreement Among Stockholders for the Election of
the Board of Directors dated January 10, 1991 among
Xxxx Xxxxxxx Mutual Life Insurance Company, Colton
Gulf Coast, Inc., NIPSCO Fuel Company, Inc. and
Baralonco Exploration, Inc.
ARTICLE II
SELLING STOCKHOLDER PURCHASE AND SALE
2.01. Purchase of Common Stock and Warrants. Upon and subject to the terms
and conditions of this Agreement, at the Closing Date Purchaser will purchase
from each Selling Stockholder, and each Selling Stockholder will sell to
Purchaser and deliver to the Purchaser, all of shares of Common Stock and
Prior Warrants held by such Selling Stockholder. At the Closing each Selling
Stockholder shall deliver to Purchaser one or more certificates representing
the Common Stock being sold by such Selling Stockholder and the instruments
representing the Prior Warrants, if any, being sold by such Selling
Stockholder, in each case duly endorsed in blank for transfer, or accompanied
by appropriate stock powers in blank.
2.02. Purchase Price. The Purchase Price for the Common Stock and Prior
Warrants will be $100 multiplied by the number of shares of Common Stock sold
by such Selling Stockholder. The Purchase Price shall be paid by Purchaser at
the Closing Date by wire transfer of immediately available funds to the
account of the Selling Stockholder as set forth on the signature pages hereto.
2.03. Closing. The closing of the transactions contemplated hereby (the
"Closing") shall be held at the offices of DPI, 0000 Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000 at 10:00 a.m., Houston Texas time on the date of the
DPI Closing. The date of the Closing is referred to herein as the "Closing
Date".
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Except as disclosed in the Schedules attached to this Agreement or as
otherwise disclosed in this Agreement, the Purchaser hereby represents and
warrants to each Stockholder that:
3.01. Organization and Existence. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Delaware
and has all requisite corporate power and authority to own and lease the
assets it currently owns and leases and to carry on its business as such
business is currently conducted.
3.02 Authority. The Purchaser has all requisite corporate power and authority
to execute and deliver this Agreement, to consummate the transactions
contemplated hereby and to perform all the terms and conditions hereof to be
performed by it. The execution and delivery of this Agreement by the
Purchaser, the performance by it of all the terms and conditions hereof to be
performed by it and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Purchaser and do not require the consent or approval of any governmental or
other regulatory body. The Agreement constitutes the valid and binding
obligation of the Purchaser enforceable in accordance with its terms, except
as the enforceability thereof may be limited by (i) bankruptcy, insolvency or
other laws relating to or affecting generally creditors' rights and (ii) by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Purchaser is purchasing
the Common Stock and Prior Warrants for investment purposes and not with a
view to the distribution thereof. Certificates representing the Common Stock
and the Prior Warrants delivered to Purchaser hereunder will be legended in
the same form as under the Prior Stockholder Agreement with reference to this
Agreement.
3.03. Funds Available. The Purchaser has, or will have prior to the
Closing Date, sufficient cash, available lines of credit or other sources of
immediately available funds to enable it to make payment of the Purchase
Price.
3.04. Litigation. There are no litigation, arbitration proceedings or
governmental proceedings pending, instituted or to the knowledge of the
Purchaser, threatened against the Purchaser or its subsidiaries which, if
adversely determined, might delay, prevent or hinder the consummation of the
transactions contemplated by this Agreement.
3.05 Purchaser Acknowledgment. Purchaser represents that it understands and
acknowledges that the Common Stock and Prior Warrants to be transferred to it
pursuant to this Agreement are restricted securities not registered under the
Securities Act of 1933 and, therefore, are subject to the transfer
restrictions set forth in the Prior Stockholder Agreement, including, without
limitation, Article Five thereof. Purchaser acknowledges that during the
course of this transaction and prior to its purchase of Common Stock and Prior
Warrants it has had access to information regarding DPI and the opportunity
to ask questions regarding DPI and to obtain such additional information (to
the extent DPI possesses such information or could acquire it without
unreasonable effort or expense) as it deems necessary.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS
Except as disclosed in this Agreement, including the schedules attached to
this Agreement, each Selling Stockholder hereby severally represents to the
Purchaser that:
4.01 (a) Such Stockholder has all requisite corporate, partnership or
individual power, as the case may be, to execute and deliver this Agreement,
to consummate the transactions contemplated hereby and to perform all the
terms and conditions hereof to be performed by it. The execution and delivery
of this Agreement by the Stockholder, the performance by it of all the terms
and conditions hereof to be performed by it and the consummation of the
transactions contemplated hereby (x) have been duly authorized by all
necessary action on the part of such Stockholder and do not require the
consent or approval of any governmental or other regulatory body and (y) do
not violate any provision of any federal or state law or regulation or any
judgment, order or decree of any federal or state court or governmental agency
applicable to or binding on such Stockholder. This Agreement constitutes the
valid and binding obligation of such Stockholder enforceable in accordance
with its terms, except as the enforceability hereof may be limited by (i)
bankruptcy, insolvency or other laws relating to or affecting generally
creditors' rights and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(b) Except as provided in the Prior Stockholder Agreement and Voting
Agreement, if such Stockholder is a party to or bound by either or both of
such Agreements, upon delivery to Purchaser of the certificates representing
the shares of Common Stock and Prior Warrants being sold by such Stockholder
to Purchaser hereunder and payment of the purchase price therefore, Purchaser
will receive good and marketable title to such Common Stock and Prior Warrants
free and clear of all liabilities, liens, trusts, stockholder agreements,
equities, charges, conditional sale or title retention agreements, covenants,
restrictions, reservations, rights of first refusal, commitments, mortgages,
pledges, security interests or encumbrances of any nature whatsoever.
(c) Based solely on a reading of the DPI Agreement by an officer or key
employee of the Selling Stockholder who is familiar with the Selling
Stockholder's investment in DPI, the Selling Stockholder does not, on the date
it executes this Agreement and at the Closing Date, have any actual knowledge
that the DPI Agreement has (i) misstated any material fact known by that
Selling Stockholder to be both (a) unknown to the Purchaser and (b) material
to the Purchaser in regard to any sale of securities pursuant to this
Agreement or (ii) omitted to state any fact known to that Selling Stockholder
to be both (a) unknown to the Purchaser and (b) necessary to be known to the
Purchaser to make any fact which is stated in the DPI Agreement not materially
misleading to the Purchaser in regard to any sale of securities pursuant to
this Agreement.
The term "actual knowledge" means, and is limited to, conscious awareness of
facts or other information, without any further investigation (including,
without limitation, any investigation of the files of the Selling Stockholder
or inquires of DPI, its counsel or accountants, Purchaser or any other person)
of the officers or key employees of the Selling Stockholder who are
familiar with the Selling Stockholder's investment in DPI and who have read
the DPI Agreement. Notwithstanding anything to the contrary in this
Agreement, the representation made in this Section 4.01(c) (including any
deemed representation made pursuant to Section 6.04) will terminate six (6)
months after the Closing Date, and Purchaser shall not make any claim against
any Stockholder with respect to this Section 4.01(c) later than six (6) months
after the Closing Date. Purchaser alone will bear the full burden of proving
each and every element of any alleged breach of this representation, including
but not limited to the actual knowledge of each party at the time the
representation was made, the materiality of any alleged breach, and the
damages, if any, allegedly suffered by the Purchaser as the result of any
alleged breach.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser hereby are subject to the satisfaction
on or prior to the Closing Date of all of the following conditions, any one
or more of which may be waived, in whole or in part, by the Purchaser:
5.01. Compliance. Each Selling Stockholder shall have complied on or
prior to the Closing Date with each of its covenants and agreements contained
in this Agreement and to be performed on or prior to the Closing Date. The
representations and warranties made by each Selling Stockholder in this
Agreement shall be true and correct as of the Closing Date with the same
effect as though made on the Closing Date, except as otherwise contemplated
by this Agreement.
5.02. Officer's Certificates. If requested, the Purchaser shall have
received a certificate, dated as of the Closing Date of an officer or other
appropriate representative of each Selling Stockholder certifying as to the
matters specified in Section 5.01 hereof.
5.03 DPI Closing. The DPI Closing shall have occurred.
ARTICLE VI
RIGHTS OF OTHER STOCKHOLDERS
6.01. Put Rights of Other Stockholders. On and subject to the terms of
this Article VI, each Other Stockholder shall have the right, at its option,
to cause Purchaser to purchase all, but not less than all, the shares of
Common Stock and Prior Warrants held by it at a purchase price equal to $100
multiplied by the number of shares of Common Stock to be sold by such Other
Stockholder to Purchaser. Purchaser shall have no obligation under this
Article VI if the DPI closing does not occur for any reason whatsoever.
6.02. Notice of Exercise. Any Other Stockholder desiring to exercise the
right set forth in Section 6.01 shall deliver a written notice of exercise
("Notice of Exercise") to the Purchaser during the period commencing on the
90th day after the Closing Date and expiring at 5:00 p.m. (Texas time) on the
first anniversary of the Closing Date (the "Expiration Time"). The Notice of
Exercise shall (i) state that such Other Stockholder is exercising the option
set forth in this Article VI, (ii) set forth the identity of the Other
Stockholder and the number of shares of Common Stock and Prior Warrants, if
any, held by such Other Stockholder and (iii) be accompanied by the
certificates representing such Common Stock and Prior Warrants, if any, being
sold by such Other Stockholder, in each case duly endorsed in blank, or
accompanied by appropriate stock powers in blank. The Notice of Exercise
shall also be deemed a demand by such Other Stockholder that the Purchaser
register, pursuant to Article VII, the shares of Purchaser Stock, if any, to
be issued to the Other Stockholder pursuant to Section 6.03(b) unless the
Other Stockholder states in the Notice of Exercise that it does not request
registration of such shares. A Notice of Exercise shall be irrevocable and
may be withdrawn only with the consent of Purchaser, which consent may be
granted or withheld in Purchaser's sole discretion. Purchaser shall have no
obligation to purchase any securities from any Other Stockholder that does not
deliver a Notice of Exercise to Purchaser prior to the Expiration Time.
6.03. Delivery of Purchase Price. At its option, Purchaser may pay the
purchase price for the securities being sold by any Other Stockholder in the
form of cash, Purchaser Stock or a combination of cash and Purchaser Stock.
Purchaser shall deliver the purchase price to the Other Stockholder complying
with Section 6.02 as follows:
(a) To the extent Purchaser elects to pay a portion of the purchase price in
cash, Purchaser will deliver to the Other Stockholder a check of
Purchaser payable to the order of the Other Stockholder; and
(b) To the extent Purchaser elects to pay a portion of the purchase price by
delivery of Purchaser Stock, Purchaser shall deliver to the Other
Stockholder a certificate, registered in the name of the Other
Stockholder, representing that number of shares of Purchaser Stock equal
to the quotient obtained by dividing (i) the portion of the purchase
price to be paid in such form by (ii) (x) if the Other Stockholder has
requested that such shares not be registered immediately under Article
VII of if the resale of the Purchaser Stock by such Other Stockholder
already has been so registered, the arithmetic average of the closing
prices of the Purchaser Stock on the New York Stock Exchange during the
period commencing on the fifth trading day on such Exchange prior to
Purchaser's receipt of the Notice of Exercise and ending on the fifth
trading day on such Exchange after Purchaser's receipt of the Notice of
Exercise or (y) otherwise, the closing price of the Purchaser Stock on
the New York Stock Exchange on the day on which the registration
statement (or an amendment to a registration statement) relating to such
shares filed pursuant to Article VII becomes effective (or if such day
is not a trading day on such Exchange, on the next preceding trading
day). If such formula would result in the issuance of a fractional
share, Purchaser may either round the number of shares up to the nearest
whole share or pay cash in lieu of the fractional share.
The purchase price shall be delivered by Purchaser not later than 15 business
days after Purchaser's receipt of a Notice of Exercise, except that
certificates representing Purchaser Stock that is to be registered pursuant
to Article VII shall be delivered to the Other Stockholder promptly after the
effective date of the registration statement (or amendment to a registration
statement) relating to such stock. If such registration statement (or
amendment) has not become effective with respect to Purchaser Stock within 90
days after Purchaser's receipt of the Notice of Exercise (whether or not
Purchaser shall have been required to file such registration statement
pursuant to Article VII), Purchaser shall not be entitled to pay any portion
of the purchase price in Purchaser Stock and shall promptly deliver any
balance of the purchase price to the Other Stockholder in cash pursuant to
clause (a) above.
The purchase of the Common Stock and Prior Warrants, if any, from an Other
Stockholder shall be effective as of the day Purchaser receives the Notice of
Exercise.
6.04. Representation of Other Stockholders; Indemnities. If an Other
Stockholder delivers a Notice of Exercise to Purchaser, such Other Stockholder
shall automatically, and without the requirement of any other action on the
part of the Other Stockholder or Purchaser, be deemed to have (a) made each
of the representations and warranties of a Selling Stockholder set forth in
Sections 4.01(a), 4.01(b) and, if such Notice of Exercise is delivered within
6 months of the Closing Date, 4.01(c) hereof and (b) agreed to indemnify
Purchaser as set forth in Article XI hereof, in each case with the same effect
and as of the same date as if such Other Stockholder were a Selling
Stockholder (it being the intent of this Section that another Stockholder be
treated as if it had sold the Common Stock on the Closing Date and accordingly
made such representatures and warranties as of such date).
6.05. Transferability and Assignment. The rights of an Other Stockholder
under this Article VI may be exercised only by an Other Stockholder that
executes this Agreement and such rights may not be assigned in whole or in
part except by operation of law or with the prior written consent of
Purchaser. Any purported assignment of all or any part of an Other
Stockholder's rights under this Article VI in violation of this Section 6.05
shall be void.
ARTICLE VII
CERTAIN REGISTRATION RIGHTS
7.01. Transfer of Purchaser Stock. Unless a registration statement is
effective with respect thereto, the shares of Purchaser Stock delivered to an
Other Stockholder pursuant to Article VI will not have been registered under
the Securities Act. It is understood that Purchaser will cause to be placed
upon certificates for shares of Purchaser Stock issued pursuant to such
Article VI (other than shares which are at the time the subject of an
effective registration statement under the Securities Act) a legend applicable
to the disposition of such shares, provided that forthwith upon any such
disposition becoming permissible pursuant to a registration statement filed
under this Article VI or otherwise Purchaser will substitute therefor, at its
expense, new certificates not bearing such legend.
Such legend shall read substantially as follows:
"The shares represented by this certificate have not been .registered
under the Securities Act of 1933 and such shares cannot be sold or
transferred unless they are so registered or an exemption from registration
is then available."
7.02. Registration on Request. Except as otherwise provided in this Article
VII, upon written notice of a holder of shares of Purchaser Stock issued
pursuant to Article VI (a "Holder") requesting that Purchaser effect the
registration under the Securities Act, of all or part of the shares of
Purchaser Stock held by it (collectively, the "Registrable Stock") which
notice shall specify the intended method or methods of disposition of such
Registrable Stock (which shall not include an underwritten offering),
Purchaser will file a registration statement with the Securities and Exchange
Commission ("SEC") (at the earliest possible date and, except as provided
herein, no later than 30 days following receipt of such notice) and use its
reasonable best efforts to effect the registration, under the Securities Act,
of such Registrable Stock for disposition in accordance with the intended
method or methods of disposition stated in such request, provided that:
(a) if, upon receipt of a registration request pursuant to this Section 7.02,
Purchaser is advised in writing (with a copy to the requesting Holder)
by a recognized independent investment banking firm selected by the Board
of Directors of Purchaser that, in such firm's opinion, a
registration at he time and on the terms requested would adversely affect
any public offering of securities by Purchaser (other than in connection
with employee benefit and similar plans) (a "Public Offering") for which
a registration statement had been filed by Purchaser prior to receiving
such registration request, Purchaser shall not be required to effect a
registration pursuant to this Section 7.02 until the earlier of (i) three
months after the completion of such Public Offering, (ii) the termination
of any "black out" period required by the underwriters, if any, to be
applicable to such Holder in connection with such Public Offering, (iii)
promptly after abandonment of such Public Offering or (iv) 135 days after
the date of written notice of the Holder requesting registration;
(b) if a registration request is made while a merger, consolidation,
acquisition, disposition or other material development involving
Purchaser is pending, and the general counsel of Purchaser determines in
writing that the filing of a registration statement would require the
disclosure of information that is material to such transaction or
material development which Purchaser has a bona fide business purpose for
preserving as confidential, and Purchaser promptly provides the Holder
requesting registration a copy of such determination, Purchaser shall not
be required to effect a registration pursuant to this Section 7.02 until
the earlier of (i) the date upon which such material information is
disclosed to the public or ceases to be material or (ii) 135 days after
the date of written notice by the Holder requesting registration; and
(c) Purchaser shall have no obligation to file or to maintain the
effectiveness of any registration statement relating to Registrable Stock
after the third anniversary of the date on which such Registrable Stock
is issued by Purchaser.
7.03. Third Person Shares. Purchaser shall have the right to cause the
registration of securities for sale for the account of any person in any
registration of Registrable Stock requested pursuant to Section 7.02, provided
that Purchaser shall not have the right to cause the registration of such
securities if the Holder requesting registration is advised in writing (with
a copy to Purchaser) by a recognized independent investment banking firm
selected by the Holder that, in such firm's opinion, registration of such
securities would adversely affect the offering and sale of the Registrable
Stock then contemplated by the Holder.
7.04. Registration Expenses. Purchaser shall be responsible for the
payment of all Registration Expenses (as defined below) in connection with any
registration pursuant to this Article VII, it being understood that with
respect to any such registration the Holder shall bear its own legal costs and
the following expenses to the extent attributable on a pro rata basis to the
shares of Registrable Stock which such Holder desires to register: (i) all
underwriting discounts and dealer fees ; (ii) all expenses in connection with
the printing of any preliminary prospectus or final prospectus, any other
offering document and amendments and supplements thereto and the mailing and
delivering of copies thereof to the underwriters and dealers; (iii) the cost
of printing or producing any agreements(s) among underwriters, underwriting
agreement(s), and blue sky or legal investment memoranda, any selling
agreements and any other documents in connection with the offering, sale or
delivery of Registrable Stock to be disposed of; (iv) all expenses in
connection with the qualification of Registrable Stock to be disposed of for
offering and sale under state securities laws; and (v) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of Registrable Stock to be
disposed of. "Registration Expenses," as used herein means all expenses
incident to Purchaser's performance of or compliance with the registration
requirements set forth in this Article VI including, without limitation, the
following: (i) the fees, disbursements and expenses of Purchaser's counsel(s)
(United States and foreign) and accountants in connection with any such
registration; (ii) all underwriting discounts and dealer fees which are not
attributable on a pro rata basis to the shares of Registrable Stock being
registered; (iii) all expenses in connection with the preparation, printing
and filing of the registration statement; (iv) all expenses in connection with
the printing of any preliminary prospectus or final prospectus, any other
offering document and amendments and supplements thereto and the mailing and
delivering of copies thereof to the underwriters and dealers which are not
attributable on a pro rata basis to the shares of Registrable Stock being
registered; (v) all fees and expenses incurred in listing the Registrable
Stock on any stock exchange and any transfer agent or registrar fees; (vi) the
cost of printing or producing any agreements(s) among underwriters,
underwriting agreement(s), and blue sky or legal investment memoranda, any
selling agreements and any other documents in connection with the offering,
sale or delivery of Registrable Stock to be disposed of which are not
attributable on a pro rata basis to the shares of Registrable Stock being
registered; (vii) all expenses in connection with the qualification of
Registrable Stock to be disposed of for offering and sale under state
securities laws, including the fees and disbursements of one firm of legal
counsel for the Holders and underwriters in connection with such qualification
and in connection with any blue sky and legal investment surveys which are not
attributable on a pro rata basis to the shares of Registrable Stock being
registered; and (viii) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms
of the sale of Registrable Stock to be disposed of which are not attributable
on a pro rata basis to the shares of Registrable Stock being registered.
7.05. Registration Procedures. If and whenever Purchaser is required to
use its reasonable best efforts to effect the registration of any Registrable
Stock under the Securities Act as provided in Section 7.02, Purchaser will
as promptly as is practicable:
(a) prepare, file and use its reasonable best efforts to cause to become
effective a registration statement on such form as Purchaser reasonably
selects under the Securities Act or update by amendment or supplement a
previously filed registration statement regarding the Registrable Stock
to be offered;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Stock until the earlier of such time as
all of such Registrable Stock has been disposed of in accordance with the
intended methods of disposition by the Holder set forth in such
registration statement or the expiration of twelve months after such
registration statement becomes effective;
(c) furnish to the Holder number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as such
Holder may reasonably request;
(d) use its reasonable best efforts to register or qualify all Registrable
Stock covered by such registration statement under such other securities
or blue sky laws of such jurisdictions, and to list such Registrable
Stock on any stock exchange, as the Holder shall reasonably request, and
do any and all other acts and things which may be necessary or advisable
to enable the Holder to consummate the disposition in such jurisdictions
of its Registrable Stock covered by such registration statement, except
that Purchaser shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent to general service of process in any
such jurisdiction; and
(e) immediately notify the Holder at any time when a prospectus relating to
a registration pursuant to Article VI hereof is required to be delivered
under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and at the request of the Holder prepare and
furnish to the Holder and any underwriter of the Registrable Stock a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Stock, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Purchaser may require the Holder to furnish such information regarding the
Holder and the distribution of such securities as Purchaser may from time to
time reasonably request in writing and as shall be required by law or by the
SEC in connection with any registration.
7.06. Blackout Periods. (a) At any time when a registration statement
pursuant to Article VI relating to Registrable Stock is effective, upon
written notice from Purchaser to the Holder that either:
(i) Purchaser has determined to engage in a financing and has been advised
in writing (with a copy to such Holder) by a recognized independent
investment banking firm selected by the Board of Directors of Purchaser
that, in such firm's opinion, Purchaser's sale of Registrable Stock
pursuant to the registration statement would adversely affect Purchaser's
own immediately planned financing (a "Transaction Blackout"); or
(ii) the general counsel of Purchaser determines in good faith in writing
(with a copy to such Holder) that the Holder's sale of Registrable Stock
pursuant to the registration statement would require disclosure of
material information which Purchaser has a bona fide business purpose for
preserving as confidential as a result of a pending merger,
consolidation, acquisition, disposition or other material development
involving Purchaser (an "Information Blackout"),
the Holder shall suspend sales of Registrable Stock pursuant to such
registration statement until the earlier of
(X) (i) in the case of a Transaction Blackout, the earliest of (A) three
months after the completion of such financing, (B) the termination of any
"blackout" period required by the underwriters to be applicable to
Purchaser, if any, in connection with such financing, (C) abandonment of
such financing and (D) 135 days after the date of Purchaser's written
notice of a Transaction Blackout, or (ii) in the case of an Information
Blackout, the earlier of (A) the date upon which such material
information is disclosed to the public or ceases to be material or (B)
135 days after receipt of notice by the Holder requesting the
registration, and
(Y) such time as Purchaser notifies the Holder that sales pursuant to
such registration statement may be resumed.
7.07. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Stock under the Securities Act, Purchaser will give the Holder and its counsel
such reasonable and customary access to its books and records and such
opportunities to discuss the business of Purchaser with its officers and the
independent public accountants who have audited its financial statements as
shall be necessary, in the opinion of the Holder and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
7.08. Indemnification and Contribution. (a) In the event of any
registration of any Registrable Stock hereunder, Purchaser will enter into
customary indemnification arrangements to indemnify and hold harmless the
Holder, its directors and officers, and each person, if any, who controls such
seller within the meaning of the Securities Act against any losses, claims,
damages, liabilities and expenses, joint or several, to which such person may
be subject under the Securities Act or otherwise insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus or final prospectus included therein, or any amendment
or supplement thereto, or any document incorporated by reference therein, or
(ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and Purchaser will reimburse each such person for any legal or any
other expenses reasonably incurred by such person in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that Purchaser shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished by such person to
Purchaser. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of Purchaser or any such director,
officer or controlling person and shall survive the transfer of the registered
securities by the Holder. Purchaser also shall agree to provide provision for
contribution as shall be reasonably requested by the Holder in circumstances
where such indemnity is held unenforceable.
(b) The Holder, by virtue of exercising its registration rights
hereunder, agrees and undertakes to enter into customary indemnification
arrangements to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 7.08(a)) each director of Purchaser, each
officer of Purchaser who shall sign such registration statement, and each
person, if any, who controls Purchaser within the meaning of the Securities
Act, with respect to any statement in or omission from such registration
statement, any preliminary prospectus or final prospectus included therein,
or any amendment or supplement thereto, if such statement or omission was made
in reliance upon and in conformity with written information furnished by it
to Purchaser. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of Purchaser or any such director,
officer or controlling person and shall survive the transfer of the registered
securities by the Holder. The Holder also shall agree to provide provision
for contribution as shall be reasonably requested by Purchaser or any
underwriters in circumstances where such indemnity is held unenforceable.
(c) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Section 7.08 (with appropriate modifications)
shall be given by Purchaser and the Holder with respect to any required
registration or other qualification of such Registrable Stock under any
federal or state law or regulation of governmental authority other than the
Securities Act.
7.09. Assignment of Registration Rights. The rights of a Holder under
this Article VII may be exercised only by an Other Stockholder that executes
this Agreement or a person to whom an Other Stockholder transfers more than
half the shares of Purchaser Stock issued to such Other Stockholder pursuant
to Article VI hereof. Purchaser shall have no obligation to register any
shares of Purchaser Stock held by any other person or entity.
ARTICLE VIII
CERTAIN AGREEMENTS OF PURCHASER
8.01 DPI Offers to Other Stockholders. It is the intent of Purchaser to use
its reasonable efforts to cause DPI to make offers approximately semiannually,
commencing approximately 18 months after the Closing Date and ending on June
30, 1997, to purchase Common Stock and Prior Warrants from the Stockholders
that have not sold all Common Stock and Prior Warrants held by them to
Purchaser pursuant to Article II or Article V hereof at the then "fair market
value" of such Common Stock and Prior Warrants. Purchaser agrees that it will
use its best efforts to cause management of DPI to prepare and present to the
Board of Directors of DPI recommendations as to the fair market value of the
Common Stock and Prior Warrants and the terms of the offer to be made to the
Stockholders. Purchaser also agrees that (a) it will use its best efforts to
cause the directors of DPI who are officers or employees of Purchaser to vote
in favor of any such offer that is approved by a majority of the directors of
DPI who are not officers or employees of Purchaser and (b) Purchaser will, if
required, vote the shares of Common Stock held by it in favor of any such
offer approved by the Board of Directors of DPI, provided that (x) each
director of DPI who is an officer or employee of Purchaser shall ultimately
be responsible to decide for himself or herself whether or not to approve any
such proposal based solely on such director's determination of the best
interest of DPI and its stockholders and (y) nothing herein shall require
Purchaser or any director of DPI to take or approve any action that is
prohibited by law, that would result in a breach of any contract, agreement
or obligation of DPI or that is not consistent with any fiduciary or other
duty of such person to DPI or its stockholders. Nothing in this Article
requires Purchaser to make (or prohibits Purchaser from making) any offers to
purchase any securities of DPI or to contribute to the capital of or advance
any funds to DPI or any other person.
8.02 Good Faith Discussions. If the Common Stock is not publicly traded on
or prior to June 30, 1999, Purchaser will, at the request of the Other
Stockholders, pursue in good faith with such Other Stockholders options and
alternatives to provide liquidity for such Other Stockholders' shares of
Common Stock, including, without limitation, the terms, if any, upon which
Purchaser would be willing to purchase (or cause DPI to purchase) such Other
Stockholder's shares of Common Stock, the terms, if any, on which Purchaser
would be willing to propose to acquire or merge with DPI and assistance
Purchaser might be able to provide in locating other possible purchasers for
such shares.
8.03 Retention of Control etc. (a) Purchaser agrees with each Other
Stockholder that Purchaser will, except as permitted in this Agreement,
through June 30, 1998 (x) retain the voting power to elect a majority of the
members of the board of directors of DPI, (y) use its reasonable business
efforts to assure that the operation by DPI and its Subsidiaries of the
properties developed under DPI's 1982, 1983, 1984, 1985, 1986 and 1989
Programs will materially comply with the requirements of the contracts
governing such operations and the Elf Subsidy Agreement and (z) use its
reasonable business efforts to assure that DPI and its Subsidiaries materially
comply with the provision's of the ELF Subsidy Agreement. For purposes of
clause (x) of the proceeding sentence, as long as Purchaser directly or
indirectly owns at least the number of shares of Common Stock acquired from
DPI under the DPI Agreement and the Selling Stockholders on the Closing Date
(as adjusted for stock splits, combinations and similar events), voting
securities of DPI which Purchaser has the power to vote or direct the vote
under voting agreements, proxies or other means (including the voting
agreement contained in Section 9.01(d)) shall be included in determining
Purchaser's voting power. Purchaser's obligations under this Section 8.03(a),
(i) will cease at such time as DPI becomes subject to the reporting
requirements of Sections 13 or 15(d) of the Exchange Act and (ii) may be
waived, either permanently or with respect to any particular circumstance, by
the written consent of Other Stockholders holding two-thirds or more of the
shares of Common Stock held by all of the Other Stockholders at the time such
waiver is granted.
(b) If Purchaser does not possess the voting power to elect a majority
of the members of the board of directors of DPI in violation of the preceding
paragraph, and Purchaser fails to obtain such power within 30 days after
written notice from any Other Stockholder, then Purchaser will pay to each
Other Stockholder cash in the amount set forth opposite the name of such Other
Stockholder on Schedule A hereto. If any Other Stockholder shall have sold,
at or prior to the time such payment is due, any of the shares of Common Stock
held by such Other Stockholder on the date hereof, the amount of the payment
to such Other Stockholder shall be proportionately reduced. Notwithstanding
the preceding sentence, the amount of payment shall not be reduced as the
result participation by such Other Stockholder in a sale by Purchaser pursuant
to Section 8.04 if the Other Stockholder does not receive proceeds of $100 or
more (as adjusted for any stock dividends, stock splits, recombinations or
other recapitalizations of the Common Stock after the Closing Date) per share
of Common Stock sold by the Other Stockholder in such transaction. If an Other
Stockholder participates in any such transaction and does receive
consideration equal to $100 or more (as so adjusted) per share of Common Stock
sold by such Other Stockholder, the Other Stockholder shall be deemed to have
waived any right to receive any payment under this Section and to have
consented to a waiver of this Section for purposes of clause (ii) of the final
sentence of Section 8.03(a). The parties agree that the amounts payable to
the Other Stockholders pursuant to this paragraph are a fair and reasonable
estimate of the damages to such Other Stockholders for a failure by Purchaser
to retain the ability to elect a majority of the directors of DPI for the
required period; that the measurement of damages to the Other Stockholders in
such circumstances is and would be difficult to ascertain or measure; and such
sum shall be in lieu of other damages.
8.04 Participation Rights in Sales. If Purchaser proposes to sell any of the
shares of Common Stock held by it, then, unless DPI is then subject to the
reporting requirements of Sections 13 or 15(d) of the Exchange Act, Purchaser
will give written notice of such sale to each Other Stockholder (which notice
shall set forth the identity of the proposed purchaser, the number of shares
to be sold by Purchaser, the consideration to be paid for the Common Stock and
the other terms of the proposed sale, all to the extent known to Purchaser).
Any Other Stockholder desiring to participate in such sale shall have the
right to participate in such proposed sale, on the same terms and conditions
(including agreeing to the same representations, warranties and indemnities)
as Purchaser, by giving written notice of such election, which shall include
the number of shares of Common Stock such Other Stockholder desires to sell,
to Purchaser within 20 days of the receipt of such notice from Purchaser (it
being understood that if Purchaser informs the Other Stockholders that
business reasons require an earlier response, the Other Stockholders will use
their respective best efforts to respond in any time period reasonably
requested by Purchaser). If the purchaser in such transaction is not willing
to purchase all the shares the Purchaser and the Other Stockholders desire to
sell in such transaction, then the number of shares of Common Stock that
Purchaser and each such Other Stockholder will be entitled to sell shall be
equal to the number of shares such person proposed to sell in such transaction
multiplied by a fraction, the numerator of which is the total number of shares
the purchaser is willing to purchase and the denominator of which is aggregate
number of shares proposed to be sold by Purchaser and all Other Stockholders.
ARTICLE IX
AGREEMENTS AMONG PURCHASER AND MAJOR STOCKHOLDERS
9.01 Certain Voting Agreements. (a) Purchaser agrees with each Major
Stockholder that Purchaser will vote all shares of Common Stock held by it (x)
to cause one person designated by each Major Stockholder to be a director of
DPI at all times from the Closing Date through the first anniversary of the
Closing Date, (y) to cause two persons designated jointly by agreement of all
Major Stockholder then owning shares of Common Stock to be directors of DPI
at all times after the first anniversary of the Closing Date so long as the
Major Stockholders as a group continue to own at least 25% of the outstanding
shares of Common Stock and (z) to cause one person designated jointly by
agreement of all Major Stockholder then owning shares of Common Stock to be
directors of DPI at all times after the first anniversary of the Closing Date
so long as the Major Stockholders as a group continue to own at least 15% of
the outstanding shares of Common Stock. If any director designated by Major
Stockholders shall cease to be a director during any of such periods,
Purchaser will vote its shares of Common Stock to elect the successor
nominated by the Major Stockholder or Stockholders entitled to designate the
director being replaced. Any designation under this Section shall be in
writing and, if a joint designation, shall be signed by each Major Stockholder
entitled to participate in such designation. Purchaser shall not be required
to vote for any designee until it receives a written designation complying
with this Section. Any Stockholder who signs this Agreement withdraws from
and waives all rights and interests under the Voting Agreement.
(b) Purchaser also agrees that it will use its best efforts as a stockholder
of DPI to assure that one representative of each Major Stockholder of DPI will
be permitted to attend and observe meetings of the board of directors of DPI
so long as such Major Stockholder holds at least 50% of the number of shares
of Common Stock held by such Major Stockholder on the date hereof.
(c) Purchaser agrees that it will cause any transferee of the Shares of
Common Stock held by Purchaser to agree to be bound by the terms of Sections
9.01(a) and 9.01(b) to the same extent as Purchaser, but the rights of
Purchaser under this Agreement shall not devolve upon such transferee by
reason of such agreement.
(d) Each Major Stockholder agrees that as long as Purchaser is required to
possess the voting power to elect a majority of the members of the board of
directors of DPI pursuant to Section 8.03, such Major Stockholder shall, at
the request of Purchaser, vote the shares of Common Stock held by such Major
Stockholder to elect the persons designated by Purchaser (which shall
constitute a majority of such board of directors) to be directors of DPI. Each
of the Major Stockholders agrees that it will cause any transferee of the
shares of Common Stock held by such Major Stockholder to agree to be bound by
the terms of this Section 9.01(d) to the same extent as such Major
Stockholder, but the rights of such Major Stockholder under this Agreement
shall not devolve upon such transferee by reason of such agreement. The
obligations of the Major Stockholders under this Section 9.01(d) shall
terminate at such time as either (x) Purchaser and the Major Stockholders do
not, as a group, own a majority of the outstanding shares of Common Stock or
(y) the number of shares of Common Stock held by Purchaser is less than the
number of shares of Common Stock held by the Major Stockholders, as a group.
(e) Each certificate of stock now or hereafter issued to the Major
Stockholders and Purchaser or their successors and assigns shall be endorsed
with the following legend:
The right to vote the shares represented by this certificate is limited
by the provisions of an agreement among certain of the stockholders of
the corporation, dated as of June 30, 1994, a copy of which is on file
with the Secretary of XxxXxx Petroleum Inc. at its principal office.
(f) Unless terminated at an earlier date, the agreements and obligations of
the Purchaser and the Major Stockholders under this Section 9.01 shall
terminate at the earlier of (x) such time as DPI is subject to the reporting
requirements of Sections 13 or 15(b) of the Exchange Act or (y) the ninth
anniversary of the Closing Date.
9.02 Preemptive Rights. Each Major Stockholder agrees that it will not
exercise any right under Section 1.2 of the Prior Stockholder Agreement to
acquire additional securities of DPI, except that such Major Stockholder shall
remain entitled to exercise its rights, if any, under such section to purchase
additional securities with respect to any issuance or sale after the Closing
Date by DPI of "New Securities" (as defined in the Prior Stockholder
Agreement) to Purchaser, any Subsidiary of Purchaser or any person directly
or indirectly controlling, controlled by or under common control with,
Purchaser.
9.03. Prior Registration Rights. Each Major Stockholder hereby agrees
that, so long as Purchaser possesses the voting power to elect a majority of
the members of the board of directors of DPI (determined in accordance with
Section 8.03), such Major Stockholder will not exercise its rights under
Section 5.3 of the Prior Stockholder Agreement to request registration of any
shares of Common Stock until the earlier of (a) July 1, 1999 or (b) such time
as DPI is subject to the reporting requirements of Sections 13 or 15(d) of the
Exchange Act.
9.04 Participation in Certain Transactions. (a) For purposes of this Section
9.04(a), the term "Interests" means interests in (x) properties subject to
DPI's 1982, 1983, 1984, 1985 and 1986 Programs (collectively, the 1982 through
1986 Programs) and 1989 Program (as created by the agreements listed on Annex
A to the DPI Agreement) and (y) partnerships managed by DPI or a subsidiary
of DPI holding interests in such properties. DPI and each Major Stockholder
shall have the right to participate in acquisitions of Interests by Purchaser
effected from the Closing Date through June 30, 1998 in accordance with the
following provisions:
(i) If Purchaser or DPI proposes to acquire an Interest, it will give written
notice of such proposed acquisition to DPI and to each Major Stockholder.
Such notice shall set forth the identity of the seller, the Interest to
be acquired, the consideration to be paid for the Interests and the other
terms of the proposed acquisition, all to the extent known to Purchaser.
If the proposed acquisition (x) includes both Interests and properties
that are not Interests, (y) includes Interests subject to both the 1982
through 1986 Programs and 1989 Program or (z) provides for consideration
other than cash, Purchaser shall determine in good faith the portion of
the purchase price allocable to the Interests, the portion of the
purchase price allocable to the Interests subject to the 1982 through
1986 Programs and to the 1989 Program and the cash value of the
consideration to be paid. Any such determination shall be binding on DPI
and each Major Stockholder.
(ii) DPI will have the right to acquire all of the Interests proposed to be
acquired until DPI shall own 5% of working interest in the properties
comprising such Interests. Of the balance of the Interests proposed to
be acquired, each Major Stockholder will have the right to acquire the
percentage (which percentage varies depending on whether the Interests
are subject to the 1982 through 1986 Programs or the 1989 Programs) of
the Interests set forth opposite the name of such Major Stockholder in
Schedule B hereto. Any Major Stockholder that sells more that 50% of the
number of shares of Common Stock held by such Major Stockholder on the
date hereof shall forfeit its right hereunder to participate in
acquisitions made after such sale. The balance of the Interests, and any
portion of the Interests offered to, but not purchased by, DPI and the
Major Stockholders, may be purchased by Purchaser or any other person in
Purchaser's discretion.
(iii)If DPI or a Major Stockholder elects to participate in the acquisition,
it shall give written notice of such election to Purchaser within 20 days
of the receipt of such notice from Purchaser (it being understood that
if Purchaser informs the Major Stockholders that business reasons require
an earlier response, the Major Stockholders will use their respective
best efforts to respond in any time period reasonably requested by
Purchaser). Such notice shall also include the maximum dollar amount, if
any, such Major Stockholder elects to pay to acquire the portion of the
Interests made available to, but not taken by, the other Major
Stockholders (any such portion of the Interests being allocated among
electing Major Stockholders in accordance with the percentages set forth
in Schedule B). An election by a Major Stockholder shall be
irrevocable.
(iv) DPI and each Major Stockholder electing to participate in the acquisition
shall bear their proportionate share of the purchase price (or allocated
purchase price) of the Interests being acquired and reasonable out-of-
pocket costs incurred by Purchaser in connection with such acquisition,
and shall otherwise participate on the same terms and conditions as
Purchaser, including without limitation, any provisions providing for
assumption of liabilities and indemnification of the seller of such
Interests or other parties. Purchaser may, in its discretion, structure
the acquisition as a direct sale from the seller to DPI and the electing
Major Stockholders or as a purchase by Purchaser and resale by Purchaser
to DPI and the electing Major Shareholders. In either event, (w)
Purchaser shall have the sole right to negotiate the terms and conditions
of the acquisition, (x) Purchaser shall have no liability to DPI or any
Major Stockholder with respect to (A) the terms or such acquisition, (B)
the adequacy, truth or falsity of any representations or warranties of
the seller or (C) the scope or adequacy of any investigation relating to
the acquisition by Purchaser, (y) DPI and each electing Majority
Stockholder will be liable for its proportionate share of any obligations
relating to the Interests assumed in the acquisition and (z) Purchaser
will make no representations or warranties to, or assume any obligation
towards, DPI and the Majority Stockholders (other than to pass through
a proportionate interest in the obligations of the seller).
(v) If the provisions of this Section 9.01(a) are inconsistent with any of
the agreements governing the 1982 through 1989 Programs, the provisions
of such other agreements will control, and Purchaser will consult in good
faith with DPI and/or the Major Stockholders as to the alternatives
available to achieve, as nearly as possible the intent of this Section.
(vi) The rights set forth in this Section 9.04 shall not in any manner limit
the rights of any party set forth in the Program Agreements, as such term
is defined in the DPI Agreement.
(b) If, prior to June 30, 1998, DPI or any of its Subsidiaries forms any new
programs or partnerships to finance acquisition, exploration or development
of oil and gas properties located in the Gulf of Mexico, Purchaser will use
its best efforts as a stockholder of DPI to cause DPI to offer to the Major
Stockholders the opportunity to participate as an investor in such program or
partnership on the best terms that are made available to any other investor
in such program or partnership. Subject to any minimum investment requirement
that DPI might in its discretion impose on participation in any such program
or partnership, each Major Stockholder would be offered the right to purchase
that portion of the program or partnership made available to investors equal
to 25% multiplied by a fraction, the numerator of which is the number of
shares of Common Stock then held by such Major Stockholder and the denominator
of which is equal to the total number of all shares held on the date hereof
by all Major Stockholders. For purposes of this Section, the Gulf of Mexico
shall mean the Other Continental Shelf (as defined in the Outer Continental
Shelf Lands Act) of the Gulf of Mexico plus all lands permanently or
periodically covered by tidal waters up to but not above the line of mean high
tide and seaward to a line three geographical miles distant from the coast
line of each such State and to the boundary line of each such State where in
any case such boundary line existed at the time such State became a member of
the Union, or as heretofore approved by Congress, extends seaward (or into the
Gulf of Mexico) beyond three geographical miles.
(c) This Section 9.04 shall be construed strictly so as not, except as
expressly provided herein, to entitle DPI, and any Subsidiary of DPI or any
Major Stockholder to participate or acquire an interest in, or to obligate
Purchaser or any Subsidiary or affiliate of Purchaser to offer any such person
a participation or interest in, any property, acquisition or other transaction
involving Purchaser or any Subsidiary or affiliate.
ARTICLE X
TERMINATION
10.01. Grounds for Termination. This Agreement may be terminated as
between Purchaser and any Stockholder at anytime by the mutual
written agreement of Purchaser and such Stockholder. This Agreement
may be also terminated as between Purchaser and any Stockholder at
any time at or prior to the Closing:
(a) By Purchaser if such Stockholder has not voted in favor the
amendment to the Certificate of Incorporation of DPI or has not
agreed to such amendments to, and granted such consents under, such
other agreements as are set forth in Article VII of the DPI
Agreement as conditions of the obligations of Purchaser thereunder.
(b) The Purchaser if any conditions in Article V shall not have been
satisfied or waived on or before the Closing; and/or
(c) By either each Stockholder or the Purchaser if the Closing shall not
have occurred by August 31, 1994,
10.02. Effect of Termination. If this Agreement is terminated as the
result of the failure by one or more parties to perform or observe any of the
covenants or agreements set forth herein to be performed or observed by such
party, nothing contained herein shall be construed to limit the legal or
equitable remedies of any of the parties hereto, including without limitation,
damages for breach of contract or for the breach of any representation,
warranty, covenant or agreement contained herein. In addition to any right
that may accrue to a party under this Article X, if the transactions
contemplated by this Agreement are not consummated as a result of the breach
by a party of the representations, warranties, covenants or agreements
contained herein, the breaching party or parties shall assume and bear all
expenses, costs and fees incurred or assumed by the nonbreaching party or
parties in pursuing the legal or equitable remedies available to it as a
result hereof.
ARTICLE XI
EXTENT AND SURVIVAL OF REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS; INDEMNIFICATION;
ACTIONS FOR DAMAGES
11.01. Effect of Breach of Representation, Warranty or Covenant;
Indemnification. Subject to Section 11.02 hereof, each Selling Shareholder
hereby agrees severally to reimburse the Purchaser for, and hold the Purchaser
harmless from, any loss, damage or expense (including reasonable attorneys'
and accountants fees and expenses) sustained by the Purchaser arising out of
or resulting from any inaccuracy in or breach of any of the representations,
warranties or covenants made by each Selling Stockholder herein (any such
loss, damage or expense being herein referred to as "Purchaser Losses"),
provided, however, that the Purchaser shall not be entitled to assert any
right of reimbursement under this Article XI, with respect to any inaccuracy
in breach of the representation set forth in Section 4.01(c), (a) unless and
until the aggregate of all Purchaser Losses, plus all amounts that would have
been Purchaser Losses but for limitations with respect to materiality or
amount, exceeds $330,000 multiplied by a fraction, the numerator of which is
the number of shares of Common Stock sold by such Selling Stockholder to
Purchaser and the denominator of which is the number of shares of Common Stock
outstanding immediately prior to the DPI Closing (the "Threshold Amount") (it
being understood that all such Purchaser Losses shall accumulate until such
time or times as the aggregate of all Purchaser Losses, plus all amounts that
would have been Purchaser Losses but for limitations with respect to
materiality or amount, exceeds the Threshold Amount, whereupon the Purchaser
shall be entitled to reimbursement hereunder for any Purchaser Losses in
excess of, but excluding, the Threshold Amount) and (b) Purchaser shall have
notified of the Loss in writing within six months after the Closing Date. In
no event shall any Selling Stockholder be liable for an amount in excess of
the purchase price paid to such person pursuant to Section 2.01 or 6.01, as
the case may be.
11.02. Survival The representations, warranties, covenants and agreements
set forth in this Agreement and in any certificate or instrument delivered in
connection herewith shall survive Closing. The representations and warranties
set forth in Section 4.01(c) shall survive until and through (but not after)
six months following the Closing Date, except as to any claim or action
pending at such time.
ARTICLE XII
BROKERS
Each Selling Stockholder and each represent to each other that it has not,
directly or indirectly employed any broker, finder, attorney or
intermediary in connection with the transactions contemplated by this
Agreement who might be entitled to a fee or commission or to reimbursement
payable by the other upon the execution of this Agreement or consummation
of the transactions contemplated hereby. It is understood that Encap
Investments, Inc. was retained by DPI in connection with the transactions
contemplated by this Agreement and that DPI will pay the fees and commissions,
if any, of such company.
ARTICLE XIII
EXPENSES
13.01 Expenses. Except as otherwise expressly provided in this Agreement,
each of the parties hereto shall assume and bear all expenses, costs and
fees incurred or assumed by such party in the preparation and execution of
this Agreement, in compliance with and performance of the agreements and
covenants contained in this Agreement and otherwise in connection with the
transactions contemplated hereby, regardless of whether the transactions
contemplated hereby shall be consummated.
ARTICLE XIV
MISCELLANEOUS
14.01. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given when received by a party at the address set
forth opposite the name of such party on the signature pages hereto.
14.02. Exclusive Agreement. This Agreement supersedes all prior
agreements between the parties (written or oral) and is intended as a
complete and exclusive statement of the terms of the agreement between the
parties.
14.03. Choice of Law; Amendments; Headings. THIS AGREEMENT SHALL BE
GOVERNED BY TEXAS LAW. THIS AGREEMENT MAY NOT BE CHANGED OR AMENDED ORALLY.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY AND
SHALL NOT AFFECT IN ANY WAY THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
14.04. Assignments and Third Parties. No party hereto shall assign this
Agreement or any part hereof without the prior written consent of the other
party except that the Purchaser may assign any or all its rights hereunder to
any Subsidiary of the Purchaser, provided that no assignment by Purchaser
(whether before or after Closing in whole or in part) shall release the
Purchaser from any obligation under this Agreement. Any shares of Common
Stock held by a Subsidiary of Purchaser shall be deemed owned by Purchaser for
all purposes hereof. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement shall entitle
any person other than the parties hereto, or their respective successors and
assigns permitted hereby to any claim, cause of action, remedy or right of any
kind.
14.05. Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but both of
which together shall constitute but one and the same agreement.
14.06 Effect of DPI Agreement. Notwithstanding anything to the contrary
in this Agreement, all obligations of Purchaser hereunder are subject to and
conditioned upon the occurrence of the DPI Closing. Purchaser may determine
whether or not to waive compliance with any conditions set forth in the DPI
Agreement, determine whether or not to terminate the DPI Agreement and take
(or refrain from taking) any other action whatsoever with respect to the DPI
Agreement, all in Purchaser's sole and absolute discretion and no Stockholder
will have any claim against Purchaser as a result of any such determination,
action or omission. No Stockholder shall have any rights in or under the DPI
Agreement except as specifically stated in the DPI Agreement.
14.07 Good Faith. The obligation to act in good faith is an integral term
of this Agreement and each party hereto covenants to the other that it will
in good faith carry out each and all terms, provisions and conditions of this
Agreement applicable to or binding on such party. The parties hereto agree
that the exercise of any option, right or privilege as provided for in this
Agreement or as permitted by applicable regulations or statutes or other
agreement between the parties regardless of the effect, economic or otherwise,
on the other party or parties is deemed, for purposes of this Agreement, as
"acting in good faith."
14.08 Waiver of Opinion in Certain Transfers of Securities. Each
signatory hereto hereby waives, as to any transfer of securities under this
Agreement, any requirement that it receive a legal opinion as set forth in
Section 5.2(c)(i) of the Prior Stockholder Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
XXXXXX OIL CORPORATION ADDRESS:
000 Xxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxx 00000
By: ___________________ Attn: Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx Vice President
Vice President Fax: (000) 000-0000
XXXXXX PETROLEUM, INC. ADDRESS:
0000 Xxxxxxxxx
Xxxxx 000
By: ___________________ Xxxxxxx, Xxxxx 00000
Xxxxx X. Xxxx
President
The undersigned stockholder hereby elects to be a "Selling Stockholder"
under this agreement, and does hereby agree to sell all Common Stock and
other securities of DPI currently held by it to the Purchaser on the Closing
Date, in accordance with and under the terms of this agreement (attach address
and wire instructions).
"SELLING STOCKHOLDER"
Shares to Warrants to
be Sold be Sold Address:
By:____________________
Name:
Title:
Wire Transfer Instructions: Wire Transfer Address
OR
The undersigned stockholder hereby elects to be an "Other Stockholder"
(as defined herein) for all purposes and declines to sell to the Purchaser
under this Agreement any of the Common Stock and other securities of DPI
currently held by it on the Closing Date.
"OTHER STOCKHOLDER" ADDRESS:
By:____________________
Name:
Title:
