STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of the
20th day of January, 1998 by and between Denbury Resources, Inc. ("Company")
and TPG Partners, L.P. ("Buyer").
W I T N E S S E T H
WHEREAS, the Company is offering $100,000,000 of its Common Shares
("Common Shares"), no par value, to the public in an offering ("Public
Offering") through a syndicate of underwriters ("Underwriters"); and
WHEREAS, concurrent with and conditioned upon the closing of the
Public Offering, the Company desires to sell to Buyer, and Buyer desires to
purchase from Company, $5,000,000 of the Company's Common Shares (the
"Shares") pursuant to a registered offering on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares. Subject to the conditions set
forth in Section 1.3 hereof, the Company agrees to sell the Shares to Buyer
and Buyer agrees to purchase the Shares from the Company for a total purchase
price of $5,000,000, on the terms and conditions set forth in this Agreement
(the "TPG Offering").
1.2 Purchase Price. The purchase price per Share for the Shares
shall be the price per share of the Common Shares to the public in the Public
Offering less underwriting discounts and commissions, as set forth in the
final prospectus relating to the Public Offering; provided, however, that
such purchase price shall be subject to approval by the Toronto Stock
Exchange ("TSE"). In the event that the TSE does not approve such purchase
price, the purchase price of the Shares shall be 100% of the price per share
to the public in the Public Offering.
1.3 Conditions Precedent. The Company's obligation to sell and
Buyer's obligation to buy the Shares is subject to and conditioned upon (i)
the closing of the Public Offering, (ii) the effectiveness of a Registration
Statement relating to the TPG Offering, and (iii) the delivery to Buyer of a
final prospectus relating to the TPG Offering.
1.4 Closing. The purchase and sale of the Shares shall be
consummated at a closing to be held simultaneously with the closing of the
Public Offering, or at such other date as the parties shall agree. At the
closing, the following documents shall be exchanged:
A. In payment of the purchase price for the Shares, Buyer
shall deliver immediately available funds to the Company by wire
transfer to NationsBank of Texas, N.A., for the Account of Denbury
Resources Inc.
B. The Company shall deliver the certificate(s) representing
the Shares to Buyer.
C. Buyer and the Company shall execute and deliver each to the
other at the closing a cross receipt for the certificate(s)
representing the Shares and the funds representing the purchase price
of the Shares, respectively.
1.5 Assignment to Affiliates. Buyer may assign all or any portion
of its rights to purchase the Shares under this Agreement to any one of its
affiliates having TPG GenPar, L.P., as its general partner, including TPG
Parallel I, L.P.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF BUYER
2.1 Informed Investor. Buyer holds the position of an affiliate of
the Company for the purpose of Rule 144 promulgated pursuant to the
Securities Act of 1933 (the "Act"), and by reason of such position has access
to substantial information regarding the Company's finances, properties,
assets and liabilities, and business prospects. Such information is
sufficient to permit Buyer to make an informed investment in the Shares.
2.2 Sophisticated Investor. By reason of Buyer's business and
financial expedience (and the business and financial experience of any
persons retained by Buyer to advise him with respect to his investment in the
Shares), Buyer (together with such advisors, if any) has such knowledge,
sophistication and experience in business and financial matters as to be
capable o evaluating the merits and risks of the investment in the Shares.
2.3 No Distribution Intent. Buyer represents to the Company that it
is not acquiring the Shares with a view to, nor does it have any current
intent to engage in, a distribution of the Shares. Buyer acknowledges that
as an affiliate under Rule 144, Buyer may only resell the Shares in
accordance with the applicable terms and conditions of Rule 144 (other than
Rule 144(d)), including restrictions on the volume of Shares that may be
resold and the manner of sale.
2.4 Authority; No Consent. Upon execution and delivery by Buyer,
this Agreement will constitute the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms. Buyer has the
absolute and unrestricted right, power, and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement. Buyer is
not and will not be required to obtain any consent from any person in
connection with the execution and delivery of this Agreement or the
consummation or performance of any of the transactions contemplated hereby.
2.5 No Violation. Buyer represents and warrants that neither the
execution and performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with, or result in a
breach of the terms, conditions and provisions of, or constitute a default
under, its organizational documents, any agreement, indenture or other
instrument under which it is bound, or (ii) violate or conflict with any
judgment, decree, order, statute, rule, regulation or administrative
proceedings or lawsuits, pending or threatened, of any court or any public,
governmental or regulatory agency or body having jurisdiction over him or his
properties or assets.
2.6 The Toronto Stock Exchange. Buyer undertakes not to sell or
otherwise dispose of any of the Common Shares purchased pursuant to this
Agreement, or an securities derived therefrom, for a period of six (6) months
from the date of the closing of the Public Offering, without the prior
consent of The Toronto Stock Exchange and any other regulatory body having
jurisdiction.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 Shares. The Shares will be duly authorized and when issued in
accordance with this Agreement and upon the payment of the purchase price set
forth in Section 1.2 hereof, will be duly and validly issued, fully paid and
nonassessable and the Company will deliver an opinion of Jenkens & Xxxxxxxxx,
a Professional Corporation, to that effect at the closing.
3.2 Authority; No Consent. Upon the execution and delivery by the
Company of this Agreement, this Agreement will constitute the legal, valid,
and binding obligation of the Company, enforceable against it in accordance
with its terms. The Company has the absolute and unrestricted right, power,
and authority to execute and deliver this Agreement and to perform its
obligations under this Agreement. The Company is not and will not be
required to obtain any consent from any person in connection with the
execution and delivery of this Agreement or the consummation or performance
of any of the transactions contemplated hereby.
ARTICLE 4
MISCELLANEOUS
4.1 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements, and
understandings relating to the subject matter hereof.
4.2 Notices. All notices, payments and other required
communications ("Notices") to the parties shall be in writing, and shall be
addressed, respectively, as follows:
If to Company: Denbury Resources Inc.
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
If to Buyer: TPG Partners, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxx X. X'Xxxxx
All Notices shall be given (i) by personal delivery, or (ii) by electronic
communication, with a confirmation sent by registered or certified mail,
return receipt requested, or (iii) by registered or certified mail, return
receipt requested. All Notices shall be deemed delivered (i) if by personal
delivery, on the date of delivery if delivered during normal business hours,
and, if not delivered during normal business hours, on the next business day
following delivery, (ii) if by electronic communication, on the date of
receipt of the electronic communication, and (iii) if solely by mail, on the
date of deposit of the mailing in an official U.S. post office mail
depository. A party may change its address by Notice to the other party.
4.3 Applicable Law and Venue. All questions concerning the
construction, validity and interpretation of this Agreement shall be governed
by the internal laws, and not the law of conflicts, of the State of Texas.
Any legal action relating to this Agreement shall be brought only in a court
of competent jurisdiction in Dallas County, Texas or in the United States
District Court for the Northern District of Texas, Dallas Division.
4.4 Attorney's Fees. If any legal action is brought by any party
hereto, it is expressly agreed that the prevailing party in such legal action
shall be entitled to recover from the other party reasonable attorneys' fees
in addition to any other relief that may be awarded. For the purposes of
this Section, the "prevailing party" shall be the party in whose favor final
judgment is entered. In the event that declaratory or injunctive relief
alone is granted, the court may determine which, if either, of the parties is
the prevailing party. The amount of reasonable attorneys' fees shall be
determined by the court.
4.5 Waiver. The failure of a party to insist on the strict
performance of any provision of this Agreement or to exercise any right,
power or remedy upon a breach hereof shall not constitute a waiver of any
provision of this Agreement or limit the party's right thereafter to enforce
any provision or exercise any right.
4.6 Severability. If any term, provision, covenant, or restriction
of this Agreement is held by the final, nonappealable order of a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder
of the terms, provisions, covenants, and restrictions hereof shall remain in
full force and effect and shall in no way be affected, impaired, or
invalidated.
4.7 Amendments. This Agreement may be amended, modified, or
superseded only by written instrument executed by all parties hereto.
4.8 Headings. The Article and Section headings appearing in this
Agreement are for convenience of reference only and are not intended, to any
extent or for any purpose, to limit or define the text of any Article or
Section.
4.9 Gender and Number. Whenever required by the context, as used in
this Agreement, the singular number shall include the plural and the neuter
shall include the masculine or feminine gender, and vice versa.
4.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which together
shall constitute one agreement binding on all parties hereto, notwithstanding
that all the parties have not signed the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
Company: DENBURY RESOURCES INC.
By: __________________________
Xxxx Xxxxxxx
Chief Financial Officer
Buyer: TPG PARTNERS, INC.
By: TPG GenPar, L.P.
its General Partner
By: ____________________
Xxxxx X. X'Xxxxx
Vice President
