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EXHIBIT 4.7
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement") is made and entered
into this 14th day of August, 1998, by and among Future Petroleum Corporation, a
Utah corporation ("Future"), B. Xxxx Xxxxx, a Texas resident ("Price"), Don Wm.
Xxxxxxxx, a Texas resident ("Xxxxxxxx"), Energy Capital Investment Company PLC,
an English investment company ("Energy PLC"), EnCap Equity 1994 Limited
Partnership, a Texas limited partnership ("EnCap LP"), and Xxxxx Energy
Resources, Ltd., a Texas limited partnership ("Xxxxx").
RECITALS:
A. Price, Reynolds, Energy PLC and EnCap LP are currently shareholders
in Future.
B. As of even date herewith, Xxxxx is being issued shares of common
stock of Future, $0.01 par value per share ("Common Stock"), in connection with
the consummation of a merger of a wholly-owned subsidiary of Xxxxx into and with
a wholly-owned subsidiary of Future pursuant to that certain Agreement and Plan
of Merger dated as of August 14, 1998, by and among Xxxxx, SCL-Cal Company, a
Texas corporation, Future and Future CAL-TEX Corporation, a Texas corporation.
C. As of even date herewith, Energy PLC and EnCap LP are being issued
additional shares of Common Stock in consideration of their agreement to
subordinate certain indebtedness owed to them by Future to a new senior credit
facility.
D. The parties hereto deem it in the mutual best interests to make the
agreements contained herein.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the foregoing Recitals and
the mutual agreements contained herein, the sufficiency of which is hereby
acknowledged and confirmed, the parties hereto, intending to be legally bound
hereby, agree as follows:
SECTION 1. DEFINITIONS.
(a) The following defined terms shall have the respective meanings
assigned to them below:
(i) "Affiliate" shall mean, with respect to any person, any
person directly or indirectly controlling, controlled by or under
common control with, such other person. For purposes of this
definition, the term "control," when used with respect to any person,
shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
person, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" shall
meanings correlative to the foregoing.
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(ii) "Xxxxx Group" shall mean Xxxxx and any transferee of a
member of the Xxxxx Group that executes or is required to execute an
Addendum Agreement.
(iii) "Designated Nominee" shall mean a person designated by a
Subject Shareholder as a nominee for election to Future's Board of
Directors.
(iv) "EnCap Group" shall mean Energy PLC, EnCap LP and any
transferee of a member of the EnCap Group that executes or is required
to execute an Addendum Agreement.
(v) "Market Price" of the Common Stock means the average
closing prices of the Common Stock for the ten trading days preceding
an Offering Notice under Section 4(b) over the principal securities
exchange in which the Common Stock is traded or, if not traded on an
exchange, the average closing price for ten trading days preceding such
Offering Notice as reported on the NASDAQ NMS, or if not traded on an
exchange or the NASDAQ NMS, the average of the closing bid and asked
prices of the Common Stock for such ten day period.
(vi) "Other Shareholder" shall mean, when used with respect to
a Subject Shareholder, the other Subject Shareholders.
(vii) "Price Group" shall mean Xxxxx, Xxxxxxxx and any
transferee of a member of the Price Group that executes is required to
execute an Addendum Agreement.
(viii) "Purchase Price" means, for purposes of Section 4, an
amount stated in dollars equal to the total value of a bona fide
written offer from a person to purchase shares of Common Stock from a
Shareholder determined as follows: (i) cash payable at closing shall be
valued at the amount thereof, (ii) a security trading on a public
market and for which published trading prices are readily available
shall be valued at its closing sales price (or if a sales price is not
available, at the average of its closing bid and asked prices) on the
last business day preceding the date of the first Offering Notice with
respect to such offer, and (iii) a security not described in clause
(ii) or other property, including cash payable in one or more
installments after closing, shall be valued at its fair market value on
the last business day preceding the date of the first Offering Notice
with respect to such offer as determined at the option of the Selling
Shareholder (as defined in Section 4) either (a) by a qualified
independent third party appraiser (the expense of which shall be paid
by the Company) or (b) in good faith by the Board of Directors of the
Company (excluding any member of the Board who is a director, officer
or shareholder of the Selling Shareholder or who has the right to
purchase Common Stock under this Agreement) but only if all of such
Board members agree to accept the assignment to make such
determination.
(ix) "Shareholders" shall mean Xxxxx, Energy PLC, EnCap LP,
Xxxxx, Xxxxxxxx and any person who executes or is required to execute
an Addendum Agreement (attached hereto as Exhibit "A") with respect to
the Common Stock.
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(x) "Subject Shareholder" shall mean either the (i) Price Group,
(ii) EnCap Group or (iii) Xxxxx Group.
(xi) "Total Voting Power" shall mean the aggregate number of votes
which may be cast by holders of outstanding Voting Securities.
(xii) "Voting Securities" shall mean Common Stock and any other
securities of Future entitled to vote generally for the election of
directors of Future.
SECTION 2. AGREEMENT REGARDING BOARD REPRESENTATION.
(a) The Price Group shall have three Designated Nominees, the EnCap
Group shall have two Designated Nominees and the Xxxxx Group shall have two
Designated Nominees.
(b) Each Shareholder agrees (i) to use its reasonable best efforts to
cause Future's Board of Directors to be composed of seven members, (ii) to use
its reasonable best efforts to cause Future to nominate or cause to be nominated
to the Future Board of Directors the Designated Nominees of the Other
Shareholders and (iii) to vote or cause to be voted all Voting Securities
beneficially owned by such Shareholder in favor of the election of the
Designated Nominees of the Other Shareholders to Future's Board of Directors.
For purposes of this Agreement, "beneficial ownership" or "beneficially own"
shall be determined in accordance with Rule 13d-3 under the Securities Exchange
Act of 1934, as amended.
(c) In the event of the death, incapacity, resignation or removal of a
Subject Shareholder's Designated Nominee preventing his or her serving on
Future's Board of Directors, each Shareholder will promptly cause the election
or appointment of another Designated Nominee of such Subject Shareholder to fill
the vacancy created thereby.
(d) Each Shareholder agrees to cause a designee of the Xxxxx Group to
be elected Chairman of the Board of Directors of Future. Xxx X. Xxxx shall serve
as the Xxxxx Group's initial designee. In the event Xx Xxxx no longer serves as
the Xxxxx Group's designee, the Xxxxx Group agrees that all of its subsequent
replacement designees as Chairman of the Board of Directors shall be subject to
the prior approval of a majority of the Board of Directors of Future, which
approval shall not be unreasonably withheld, and if a replacement designee is
not so approved, the Xxxxx Group shall designate another designee acceptable to
Future's Board of Directors.
SECTION 3. TAG ALONG RIGHTS.
(a) If any Shareholder (for purposes of this Section 3, a "Selling
Shareholder") proposes to sell, dispose of or otherwise transfer any shares
(whether currently owned or hereafter acquired) of Common Stock (the shares of
Common Stock proposed to be transferred being called the "Subject Shares") other
than pursuant to an Exempt Transfer (as defined below), the Selling Shareholder
shall refrain from effecting such transaction unless, prior to the consummation
thereof, the Shareholders other than the Selling Shareholder (the "Tag Along
Shareholders"), shall have been afforded the opportunity to join in such sale on
the basis hereinafter described. Each of the Shareholders agrees
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not to transfer any shares of Common Stock indirectly in a manner that would be
inconsistent with the essential intent of this Section 3.
(b) Not less than 30 nor more than 120 days prior to the consummation
of any proposed sale, disposition or transfer of the Subject Shares, the Selling
Shareholder shall notify, or cause to be notified, each Tag Along Shareholder in
writing of each such proposed transfer. Such notice ("Sale Notice") shall set
forth: (i) the name of the transferor (the "Proposed Purchaser") and the number
of Subject Shares proposed to be transferred, (ii) the name and address of the
Proposed Purchaser, (iii) the proposed amount and form of consideration and
terms and conditions of payment offered by such Proposed Purchaser and (iv) that
the Proposed Purchaser has been informed of the tag along right provided for in
this Section 3 and has agreed to purchase shares of Common Stock owned by such
Tag Along Shareholder in accordance with the terms hereof. The tag along right
may be exercised by any Tag Along Shareholder by delivery of a written notice to
the Selling Shareholder proposing to sell the Subject Shares (the "Tag-Along
Notice") within 30 days following its receipt of the notice specified above. The
Tag-Along Notice shall state the amount of shares of Common Stock (the
"Tag-Along Shares") that such Tag-Along Shareholder proposes to include in such
transfer to the Proposed Purchaser. If no Tag-Along Notice is received during
the 30-day period referred to above (or if such Notices do not cover all the
Subject Shares proposed to be transferred), the Selling Shareholder shall have
the right, for a 90-day period after the expiration of the 30-day period
referred to above, to transfer the-Subject Shares specified in the Tag-Along
Notice (or the remaining Subject Shares) on terms and conditions no more
favorable than those stated in the Tag- Along Notice and in accordance with the
provisions of this Section 3.
(c) In the event that the number of shares of Common Stock that the
Selling and Tag Along Shareholders propose to sell is greater than the number of
shares of Common Stock that the Proposed Purchaser proposes to buy, each such
Shareholder (a "Participating Shareholder") shall be permitted to sell the total
number of shares of Common Stock that the Proposed Purchaser agrees to purchase
multiplied by the Pro Rata Percentage (as defined) attributable to such
Participating Shareholder, unless otherwise agreed by all of the Participating
Shareholders. The Pro Rata Percentage shall mean a percentage equal to X divided
by Y, where "X" is equal to the number of issued and outstanding shares of
Common Stock currently held by such Participating Shareholder, and where "Y" is
equal to the aggregate number of shares of Common Stock then owned by all of the
Participating Shareholders.
(d) Any such purchase shall be made on the same price and other terms
and conditions as the Proposed Purchaser has offered with respect to the Subject
Shares. In the event that the Proposed Purchaser does not purchase the Tag-Along
Shares from the Tag Along Shareholders on the same terms and conditions as
specified in the Sale Notice, then the Selling Shareholder shall not be
permitted to sell any Subject Shares to the Proposed Purchaser in the proposed
transfer. The closing of any purchase from the Tag Along Shareholders shall
occur contemporaneously with the purchase and sale of the Subject Shares or at
such other time as such Tag-Along Shareholder and the Proposed Purchaser shall
agree.
(e) As used herein, the term "Exempt Transfer" shall mean any sale,
disposition or transfer of the Subject Shares to be effected (i) through a
registration of such shares under the
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Securities Act of 1933, as amended (the "Securities Act"), (ii) pursuant to and
in compliance with Rule 144 promulgated by the Securities and Exchange
Commission pursuant to the Securities Act, or (iii) transfers by a Selling
Shareholder to any person who is a partner or equity holder of such Selling
Shareholder, a successor of, or an entity all of the equity interests of which
are directly or indirectly owned by, the Selling Shareholder or an Affiliate of
the Selling Shareholder; provided that no transfer pursuant to (iii) above shall
be an Exempt Transfer unless the transferee agrees in writing to be bound by
this Agreement and executes an Addendum Agreement hereto.
(f) The provisions of this Section 3 shall not apply to any bona fide
charge, pledge or mortgage by any Shareholder of any shares of Common Stock
owned or held by it or its rights under this Agreement; provided that any
disposition of any such shares of Common Stock after foreclosure of such charge,
pledge or mortgage shall be governed by the provisions of this Agreement, and
the purchaser or purchasers of the shares shall have entered into an Addendum
Agreement with Future and the other Shareholders.
SECTION 4. RIGHT OF FIRST REFUSAL.
(a) No Shareholder may sell, transfer or dispose of any shares (whether
currently owned or hereafter acquired) of Common Stock except in compliance with
this Section 4. If any Shareholder desires to dispose of any shares of Common
Stock owned or held by it pursuant to a bona fide offer, such Shareholder (for
purposes of this Section 4, a "Selling Shareholder") shall offer such shares for
sale at the Purchase Price to the other Shareholders, all in accordance with the
following provisions of this Section 4.
(i) The Selling Shareholder shall deliver a written notice
("Offering Notice") to the other Shareholders, and within 30 days from
the receipt of such Offering Notice, the other Shareholders shall
deliver written notice ("Reply Notice") to the Selling Shareholder. If
by their Reply Notice the other Shareholders accept the offer of the
Selling Shareholder, such Reply Notice shall constitute an agreement
binding upon the Selling Shareholder and the other Shareholders to sell
and purchase the offered shares at the Purchase Price. Once the
Offering Notice is delivered, the offer by the Selling Shareholder may
not be withdrawn prior to the expiration of the option of the other
Shareholders, as provided in this Section 4.
(ii) Any dispute concerning the calculation of the Purchase Price
shall be resolved by the Board of Directors of the Company, excluding
any member of the Board who is, or is a director, officer, partner or
stockholder of, the Selling Shareholder or who has a right to purchase
stock from the Selling Shareholder in the transaction for which the
Purchase Price is being determined; provided that if all directors are
excluded pursuant to the foregoing, such disputes shall be submitted to
binding arbitration as provided in Exhibit B. The Purchase Price shall
be paid in cash at the closing.
(iii) If the other Shareholders do not accept an offer of the
Selling Shareholder pursuant to the foregoing provisions of this
Section 4 the Selling Shareholder shall be freed and discharged, except
as herein stated, from all obligations under the terms of this
Agreement other than to sell the offered shares to the purchaser and at
the price and upon the
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terms stated in the Offering Notice given by the Selling Shareholder
pursuant to this Section 4, but only if such sale shall be completed
within a period of ninety days from the date of delivery of the
Offering Notice to the other Shareholders. If the Selling Shareholder
does not complete such sale within such ninety-day period, all the
provisions of this Agreement, including the provisions of this Section
4, shall apply to any future sale or offer for sale of such shares of
Common Stock owned by the Selling Shareholder.
(b) Upon any involuntary disposition of a Shareholder's shares of
Common Stock, such Shareholder or its representative shall send notice thereof,
disclosing in full to the Company and the other Shareholders the nature and
details of such involuntary disposition and offer such shares for sale at the
Market Price of Common Stock to the other Shareholders, all in accordance with
the following provisions of this Section 4. As used in this Section 4(b), the
term "Selling Shareholder" shall mean such Shareholder or its representative, as
the case may be.
(i) The Selling Shareholder shall deliver an Offering Notice to the
other Shareholders. Each of the other Shareholders shall have 30 days
from the receipt of their respective Offering Notice to deliver a Reply
Notice to the Selling Shareholder. If by their Reply Notice the other
Shareholders accept the offer of the Selling Shareholder, such Reply
Notice shall constitute an agreement binding upon the Selling
Shareholder and the other Shareholders to sell and purchase the offered
shares at the price and upon the terms stated in the Offering Notice of
the Selling Shareholder.
(ii) In connection with any purchase and sale of shares of Common
Stock pursuant to paragraph (i) of this Section 4(b), the purchaser or
purchasers shall pay the purchase price for the shares in cash at the
closing.
(iii) If the Shareholders do not accept the offer of the Selling
Shareholder pursuant to the foregoing provisions of this Section 4(b),
the Selling Shareholder shall be freed and discharged from all
obligations under the terms of this Agreement except to dispose of the
offered shares by involuntary disposition but only if the transferee
under any such disposition shall have entered into and Addendum
Agreement with the Company and the other Shareholders. If such
involuntary disposition is not effected, all the provisions of this
Agreement, including the provisions of this Section 4, shall apply to
any future involuntary disposition of such shares of Common Stock owned
by the Selling Shareholder.
(c) The provisions of this Section 4 shall not apply to any bona fide
charge, pledge or mortgage by any Shareholder of any shares of Common Stock
owned or held by it or its rights under this Agreement; provided that any
disposition of any such shares of Common Stock after foreclosure of such charge,
pledge or mortgage shall be governed by the provisions of this Agreement, and
the purchaser or purchasers of the shares shall have entered into an Addendum
Agreement with Future and the other Shareholders.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS.
Each Shareholder hereby represents and warrants to the other
Shareholders as follows:
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(a) As of the date hereof, such Shareholder is the record and
beneficial owner of the number of shares of Common Stock set forth opposite its
name in the attached Exhibit 4(a).
(b) Such Shareholder, if not a natural person, is duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
formation.
(c) Such Shareholder has full power and authority to execute, deliver,
and perform this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by such Shareholder
and constitutes a valid and legally binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms.
(d) The execution, delivery, and performance by such Shareholder of
this Agreement do not and will not (i) if not a natural person, be in
contravention of or violate any provision of its charter or other governing
documents, as amended to the date hereof, (ii) conflict with or result in a
violation of any provision of, or constitute (with or without the giving of
notice or the passage of time or both) a default under, or give rise (with or
without the giving of notice or the passage of time or both) to any right of
termination, cancellation, or acceleration under, any bond, debenture, note,
mortgage, indenture, lease, contract, agreement, or other instrument or
obligation to which such Shareholder is a party or by which such Shareholder or
any of its properties may be bound or (iii) violate any applicable law, rule or
regulation binding upon such Shareholder.
(e) No consent, approval, order, or authorization of, or declaration,
filing, or registration with, any court or governmental agency or of any third
party is required to be obtained or made by such Shareholder in connection with
the execution, delivery, or performance by such Shareholder of this Agreement.
SECTION 6. SURVIVAL OF PROVISIONS.
All representations, warranties and covenants made by each party hereto
in this Agreement or any other document contemplated hereby shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement or such other document, regardless of
any investigation made by or on behalf of any such party.
SECTION 7. ENTIRE AGREEMENT.
This Agreement and the other documents contemplated hereunder contain
the entire understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations,
and discussions among the parties with respect to such subject matter,
including, without limitation that certain Voting Agreement dated November 25,
1997, by and between Future, Energy PLC, EnCap LP, Xxxx Xxxxx and Don Wm.
Xxxxxxxx and that certain Purchase and Sale Agreement dated November 25, 1997,
by and among Future, Energy PLC, EnCap LP and Gecko Booty 1994 I Limited
Partnership. Neither Future nor any Shareholder shall be a party to any
agreement involving any holder of capital stock of Future, as such, unless
Future and all such Shareholders are also parties to that agreement, except with
the written consent of Future and all such Shareholders who are not parties to
such an agreement.
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SECTION 8. AMENDMENTS.
This Agreement may be amended, modified, supplemented, restated or
discharged only by an instrument in writing signed by each of the Subject
Shareholders hereto. For purposes of this section, a Subject Shareholder shall
be deemed to have properly executed an amendment hereto upon the consent of the
holders of a majority of the then outstanding Voting Securities held by the
members of such Subject Shareholder.
SECTION 9. NOTICES.
All notices and other communications required under this Agreement
shall (unless otherwise specifically provided herein) be in writing and be
delivered personally, by recognized commercial courier or delivery service
(which provides a receipt), by telecopier (with receipt acknowledged), or by
registered or certified mail (postage prepaid), at the following addresses:
If to Xxxxx: c/x Xxxxx Energy Company
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxx
Fax No.: 000-000-0000
If to B. Xxxx Xxxxx or
Don Wm. Xxxxxxxx: c/o Future Petroleum Corporation
0000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Fax No.: 000-000-0000
If to Energy PLC or
EnCap LP: x/x XxXxx Xxxxxxxxxxx, X.X.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxx or
Xxxxx Xxxxxxx
Fax No.: 000-000-0000
and shall be considered delivered on the date of receipt. A Shareholder may
specify as its proper address any other post office address within the
continental limits of the United States by giving notice to the other
Shareholders, in the manner provided in this Section, at least ten (10) days
prior to the effective date of such change of address.
Any party hereto may designate a different address by notice to the
other parties.
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SECTION 10. TERMINATION.
This Agreement shall terminate upon the earlier of (i) the written
consent of each of the Shareholders, (ii) when the Shareholders collectively
hold an aggregate of less than 30%, or when, with respect to a Subject
Shareholder, such Subject Shareholder owns less than 5% of the issued and
outstanding shares of Common Stock (and this Agreement shall be terminated
solely with respect to such Subject Shareholder but shall remain in effect as to
those Subject Shareholders owning 5% or more of the issued and outstanding
shares of Common Stock).
SECTION 11. POWER OF ATTORNEY.
For the purpose of executing an Addendum Agreement, all the
Shareholders hereby appoint Future as their agent and attorney to execute such
Addendum Agreement on their behalf and expressly bind themselves to the Addendum
Agreement by Future's execution of that Agreement without further action on
their part.
SECTION 12. NO WAIVER.
The failure of any party hereto to insist upon strict performance of a
covenant hereunder or of any obligation hereunder, irrespective of the length of
time for which such failure continues, shall not be a waiver of such party's
right to demand strict compliance in the future. No consent or waiver, express
or implied, to or of any breach or default in the performance of any obligation
hereunder shall constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation hereunder.
SECTION 13. CHOICE OF LAW.
This Agreement shall be governed by the laws of the State of Utah.
SECTION 14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION 15. REFERENCES AND CONSTRUCTION.
(a) For purposes of this Agreement, whenever any Shareholder is
required to offer shares of Common Stock to the other Shareholders pursuant to
this Agreement, such offer shall be deemed to be made to the other Shareholders
pro rata in accordance with their respective holdings of shares of Common Stock
at the time of the offer, or in such other proportions as may be agreed upon by
all Shareholders electing to accept the offer who, pursuant to this agreement,
would purchase more or less than their pro rata share. Except as may otherwise
be agreed, each member of the group to whom such shares are so offered shall
have the right to purchase that proportion of the number of such offered shares
that the number of shares of Common Stock owned by such member bears to
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the total number of shares of Common Stock owned by the members of the group
electing to accept the offer.
(b) The provisions of Sections 3 and 4 shall not apply to transactions
between members of a group, so that transactions between members of the Price
Group shall not be subject to Sections 3 and 4, transactions between members of
the EnCap Group shall not be subject to Sections 3 and 4 and transactions
between members of the Xxxxx Group shall not be subject to Sections 3 and 4 and
any shares transferred pursuant to such transactions shall remain subject to
this Agreement. The parties hereto consent to the pledge of shares of Common
Stock pursuant to those certain Pledge Agreements (stock) by Xxxxx, Energy PLC
and EnCap LP, B. Xxxx Xxxxx and Don Wm. Xxxxxxxx, respectively, in favor of Bank
of America National Trust and Savings Association and agree that Sections 3 and
4 hereof shall not be applicable to such pledges or any foreclosures or resales
thereunder.
(c) All references in this Agreement to articles, sections, subsections
and other subdivisions refer to corresponding articles, sections, subsections
and other subdivisions of this Agreement unless expressly provided otherwise.
(d) Titles appearing at the beginning of any of such subdivisions are
for convenience only and shall not constitute part of such subdivisions and
shall be disregarded in construing the language contained in such subdivisions.
(e) The words "this Agreement", "this instrument", "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.
(f) Words in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise requires.
(g) Unless the context otherwise requires or unless otherwise provided
herein, the terms defined in this Agreement which refer to a particular
agreement, instrument or document also refer to and include all renewals,
extensions, modifications, amendments or restatements of such agreement,
instrument or document, provided that nothing contained in this subsection shall
be construed to authorize such renewal, extension, modification, amendment or
restatement.
(h) Examples shall not be construed to limit, expressly or by
implication, the matter they illustrate.
(i) The word "or" is not exclusive and the word "includes" and its
derivatives means "includes, but is not limited to" and corresponding derivative
expressions.
(j) No consideration shall be given to the fact or presumption that one
party had a greater or lesser hand in drafting this Agreement.
(k) All references herein to "$" or "dollars" shall refer to U.S.
Dollars.
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SECTION 16. ENDORSEMENTS.
The certificate or certificates representing the Voting Securities now
owned or hereafter acquired by the Shareholders shall have conspicuously
stamped, printed, or typed on the face or back thereof a legend substantially in
the following form:
"The shares represented hereby are subject to that certain
Shareholders' Agreement dated as of August 14, 1998, by and among the
Company, B. Xxxx Xxxxx, Don Wm. Xxxxxxxx, Energy Capital Investment
Company PLC, and EnCap Equity 1994 Limited Partnership and Xxxxx Energy
Resources, Ltd. A copy of the Shareholders' Agreement and all
applicable amendments thereto will be furnished by the Company to the
holder hereof without charge upon written request to the Company at its
principal place of business or registered office."
SECTION 17. SPECIFIC PERFORMANCE.
Each of the parties hereto recognizes that any breach of the terms of
this Agreement may give rise to irreparable harm for which money damages would
not be an adequate remedy, and accordingly agree that, in addition to other
remedies, any nonbreaching party shall be entitled to enforce the terms of this
Agreement by a decree of specific performance without the necessity of proving
the inadequacy as a remedy of money damages.
SECTION 18. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, with each such
counterpart constituting an original and all of such counterparts constituting
but one and the same agreement.
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EXHIBIT 4(a)
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Number of Shares
Shareholder of Common Stock
B. Xxxx Xxxxx..................................................... 1,089,149
Don Wm. Xxxxxxxx.................................................. 753,362
Energy Capital Investment Company PLC............................. 2,269,886
EnCap Equity 1994 Limited Partnership............................. 2,424,973
Xxxxx Energy Resources, Ltd....................................... 4,694,859
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