EXHIBIT 10.8
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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This Amended and Restated Shareholders Agreement (this
"AGREEMENT") is made and entered into as of August 2, 2001, by and among Inland
Resources Inc., a Washington corporation (the "INLAND"), Inland Holdings, LLC, a
California limited liability company ("TCW"), and Hampton Investments LLC, a
Delaware limited liability company ("▇▇▇▇▇").
W I T N E S S E T H
WHEREAS, Inland, TCW, Fund V (as defined below), Joint Energy
Development Investments II Limited Partnership, a Delaware limited partnership
("JEDI"), Pengo Securities Corp., a Delaware corporation ("PENGO"), ▇▇▇▇▇ Energy
Partnership, a New York general partnership ("SEP"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(collectively, the "▇▇▇▇▇ INDIVIDUALS") (▇▇▇▇▇, Pengo, SEP and the ▇▇▇▇▇
Individuals, together with any of their respective affiliates, the "▇▇▇▇▇
GROUP") entered into that certain Shareholders Agreement dated as of September
21, 1999 (the "ORIGINAL AGREEMENT");
WHEREAS, ▇▇▇▇▇ has acquired a total of 570,698 shares of
Inland's Common Stock (as defined in the Original Agreement) from the other
members of the ▇▇▇▇▇ Group and 292,098 shares of Common Stock from JEDI, and
▇▇▇▇▇ is concurrently herewith acquiring from TCW 1,455,390 shares of Common
Stock held by TCW;
WHEREAS, after the sale of Common Stock by TCW described
above, TCW will own 297,196 shares of Inland's Common Stock (the "TCW COMMON
STOCK") and no other equity securities of Inland;
WHEREAS, after the purchase of Common Stock from TCW described
above, ▇▇▇▇▇ will own a total of 2,318,186 shares of Inland's Common Stock (the
"▇▇▇▇▇ COMMON STOCK") and no other equity securities of Inland;
WHEREAS, the parties hereto desire to amend and restate the
Original Agreement in its entirety as provided herein; and
WHEREAS, TCW and ▇▇▇▇▇ desire to make certain provisions
regarding, among other things, the transfer of shares of capital stock of
Inland.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, conditions and agreements contained
herein, the parties hereto, intending to be legally bound by the terms hereof,
agree that the Original Agreement is amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the
following meanings:
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"AFFILIATE" or "AFFILIATE" shall mean, with respect to any
Person, (i) any other Person directly or indirectly owning, controlling or
holding with power to vote 50% or more of the outstanding voting securities of
the specified Person; (ii) any other Person 50% or more of whose outstanding
voting securities are directly or indirectly owned, controlled or held with
power to vote by the specified Person; (iii) any other Person directly or
indirectly controlling, controlled by or under common control with the specified
Person; or (iv) any officer, director, partner or sanguineous or affined kin of
the specified Person or of any other Person described in clause (iii) above. For
the avoidance of doubt and without limiting the generality of the foregoing, the
following Persons shall be deemed to be Affiliates of ▇▇▇▇▇: (a) ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. Pasmas, ▇▇▇▇ ▇. ▇▇▇▇▇,
(b) any immediate family member of any Person falling within (a) above, (c) any
direct lineal descendant of any Person falling within (b) above, (d) any trust
established for the benefit of any Person falling within (a) to (c) above, (e)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and (f) any Person controlling, controlled by or under common
control with (a) to (e) above. For the further avoidance of doubt and without
limiting the generality of the foregoing, any partner, member, shareholder,
participant or beneficial interest owner of any TCW partner, member,
shareholder, participant or beneficial interest owner of any of the foregoing
shall be deemed to be an Affiliate of TCW.
"BOARD" or "BOARD OF DIRECTORS" shall mean the board of
directors of Inland and every Subsidiary thereof.
"COMMISSION" shall mean the United States Securities and
Exchange Commission or any other similar or successor agency of the federal
government administering the Securities Act.
"COMMON STOCK" shall mean the common stock of Inland, par
value $.001 per share.
"DRAG-ALONG NOTICE" shall have the meaning ascribed to such
term in SECTION 4.
"DRAG-ALONG PARTY" shall have the meaning ascribed to such
term in SECTION 4.
"DRAG-ALONG PERIOD" shall have the meaning ascribed to such
term in SECTION 4.
"DRAG-ALONG SHARES" shall have the meaning ascribed to such
term in SECTION 4.
"DRAG-ALONG TRANSACTION" shall have the meaning ascribed to
such term in SECTION 4.
"EXCHANGE AND NOTE ISSUANCE AGREEMENT" shall mean that certain
Exchange and Note Issuance Agreement dated the date hereof by and among Inland,
Inland Production Company, Inland Working Capital Company, Inland Holdings LLC
and TCW Portfolio No. 1555 DRV Sub-Custody Partnership, LP.
"FUND V" shall mean Trust Company of the West, a California
trust company, solely in its capacity as custodian for Mellon Bank for the
benefit of Account No. CPFF 873-3032 AND TCW Portfolio No. 1555 DR V Sub-Custody
Partnership, L.P., a California limited partnership.
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"HOLDER" or "HOLDERS" shall mean the Persons holding any of
the Securities, either individually or collectively as the context so requires.
"NEW SECURITIES" shall have the meaning ascribed to such term
in SECTION 8.1(A).
"PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or agency or political
subdivision thereof.
"SALE CONTRACT" shall have the meaning ascribed to such term
in SECTION 4.3.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any successor Federal statute and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
"SECURITIES" shall mean the TCW Common Stock and ▇▇▇▇▇ Common
Stock.
"▇▇▇▇▇ COMMON STOCK" shall have the meaning ascribed to such
term in the recitals hereto.
"SUBSIDIARIES" shall mean the subsidiaries of Inland.
"TAG TRANSACTION" shall have the meaning ascribed to such term
in SECTION 3.1.
"TAGALONG PARTY" shall have the meaning ascribed to such term
in SECTION 3.1.
"TCW COMMON STOCK" shall have the meaning ascribed to such
term in the recitals hereto.
"TCW ENTITY" shall have the meaning ascribed to such term in
SECTION 4.2.
"TCW SUB NOTES" shall mean the unsecured subordinated note(s)
of Inland issued pursuant to the Exchange and Note Issuance Agreement.
"TRANSFER" shall have the meaning ascribed to such term in
SECTION 2. For the avoidance of doubt, the term "Transfer" shall not include a
pledge or hypothecation, but shall include any transfer upon the foreclosure or
realization of collateral arising from a pledge or hypothecation.
"TRANSFEROR" shall have the meaning ascribed to such term in
SECTION 3.1.
"TRANSFEREE" shall have the meaning ascribed to such term in
SECTION 3.1.
"VOTING STOCK" shall mean the capital stock of any class or
classes of Inland, including, without limitation, the Common Stock, the holders
of which are entitled to participate generally in the election of the members of
Inland's Board, and any securities of Inland convertible into, or exercisable or
exchangeable for, any such capital stock of Inland.
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SECTION 2. RESTRICTIVE LEGEND AND RIGHT TO TRANSFER
2.1 Each party hereto understands and agrees that Inland
will cause the legend set forth below to be placed upon any certificates or
other documents or instruments evidencing ownership of the ▇▇▇▇▇ Common Stock
and the TCW Common Stock, until such time as the later of a certificate bearing
such legend is transferred to a non-affiliate of ▇▇▇▇▇ or TCW or the repayment
in full of the TCW Sub Notes (at which time Inland agrees to remove such
legend(s) upon request of a holder of such certificate):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TAG-ALONG, AND DRAG-ALONG RIGHTS AND VOTING AGREEMENTS AS SET FORTH IN
THAT CERTAIN AMENDED AND RESTATED SHAREHOLDERS AGREEMENT DATED AUGUST
2, 2001 AMONG INLAND RESOURCES, INC., INLAND HOLDINGS, LLC AND HAMPTON
INVESTMENTS LLC. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY. CERTAIN OF SUCH RIGHTS AND AGREEMENTS ARE
BINDING ON CERTAIN TRANSFEREES OF THESE SHARES."
2.2 Except as provided in Sections 3 or 4 herein and
subject to applicable securities laws, any restrictive legends on certificates
evidencing the Securities and any other agreements governing or restricting
transfer of the Securities, each of TCW and ▇▇▇▇▇ shall have the right to freely
sell, assign, transfer, give away or dispose of (any of the foregoing being
hereinafter referred to as a "Transfer") their respective interests in the
Securities, whether in whole or in part, to any Person without restriction other
than as set forth herein.
SECTION 3. TAGALONG RIGHTS
3.1 If ▇▇▇▇▇ or any affiliate thereof ("TRANSFEROR")
transfers, other than in a public offering pursuant to a registration statement,
any shares of Common Stock held by such Transferor to any Person or Persons
other than to an affiliate of ▇▇▇▇▇ (a "TRANSFEREE") in one transaction or a
series of related transactions, which transfer or transfers constitute the
Transfer of a majority of the shares of ▇▇▇▇▇ Common Stock held by ▇▇▇▇▇ as of
the date hereof (a "TAG TRANSACTION"), then TCW or any Affiliate of TCW (the
"TAGALONG PARTY") shall have the right to sell to the Transferee, at the same
price per share and otherwise on the same terms and conditions as provided with
respect to the sale by the Transferor to the Transferee, up to the number of
shares of Common Stock (rounded to the nearest whole share) equal to the product
of (i) the total number of shares of Common Stock which the Tagalong Party then
owns and (ii) a fraction with a numerator equal to the number of shares of
Common Stock then proposed to be sold by the Transferor and a denominator equal
to the total number of shares of Common Stock owned by the Transferor as of the
date hereof. The right of the Transferor to sell shall be subject to the
condition that the Transferor shall cause the Transferee that proposes to
purchase the shares of the Transferor to offer to purchase, at the same price
per share and otherwise on the same terms, such number of shares from the
Tagalong Party; PROVIDED, HOWEVER, that if the Transferee is for any reason
unwilling or unable to purchase the aggregate number of shares from the
Transferor to be purchased together with the Tagalong Party desiring to Transfer
shares in such transaction, then the number of shares to be sold by each shall
be proportionally reduced (based on the total
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number of shares originally proposed to tag along or be sold) to such number as,
when taken with the number of shares to be sold by each other such party, shall
be equal to the number of shares which such Transferee is willing or able to
purchase (provided that such Transfer shall satisfy the conditions set forth in
the first sentence of this SECTION 3.1). Each Tagalong Party shall only be
entitled to sell shares of Common Stock under this SECTION 3 that it owns as of
the date hereof and any securities acquired after the date hereof concurrently
with securities of the same type acquired by ▇▇▇▇▇; other securities acquired
after the date hereof in any manner shall not be subject to the tagalong rights
provided in this SECTION 3.
3.2 The Transferor shall give written notice to TCW, and
to any Affiliate of TCW to whom TCW has Transferred TCW Common Stock (notice of
which such Affiliate transferees has been given to ▇▇▇▇▇ or any other
Transferor) at least fifteen (15) business days prior to any proposed
Transfer(s) of Common Stock constituting a Tag Transaction. The notice shall
specify the proposed Transferee, the number of shares of Common Stock to be
sold, the amount and type of consideration to be received therefor, and the
place and date on which the sale is to be consummated. If the Tagalong Party
desires to include shares of Common Stock in such sale pursuant to SECTION 3.1,
the Tagalong Party shall be required to notify the Transferor not more than ten
(10) business days after its receipt of the notice required to be delivered by
the Transferor in order to exercise its tagalong rights under SECTION 3.1.
3.3 If a Transferor proposes to Transfer to any Affiliate
thereof any of the ▇▇▇▇▇ Common Stock held by such Transferor, then such
Transferor, as a condition to the Transfer, (i) shall cause such Affiliate to
agree to be bound by this Section 3 and such Affiliate shall thereupon be deemed
to be a party hereto and (ii) shall notify TCW of the identity and address of
the Affiliate transferee. The tag along rights set forth in this SECTION 3 shall
not be applicable to transferees of TCW other than to Affiliates of TCW.
SECTION 4. DRAG-ALONG.
4.1 If a Transferor sells, other than in a public
offering pursuant to a registration statement, shares of Common Stock held by
such Transferor to a Transferee in one transaction or a series of related
transactions on arms-length terms which constitute the transfer of all of the
Common Stock then owned by ▇▇▇▇▇ and its Affiliates, the Transferor and/or its
affiliates may, at their option, cause TCW (together with any party deemed to be
included in such definition pursuant to SECTION 4.2 below, a "DRAG-ALONG PARTY")
to sell to the Transferee, on the same terms and conditions as provided with
respect to the sale by the Transferor to such Transferee in such transaction,
all shares of Common Stock which the Drag-Along Party then owns (such shares
being "DRAG-ALONG SHARES" and such transaction being a "DRAG-ALONG
TRANSACTION"); PROVIDED, HOWEVER, that: (x) the price for the Drag-Along Shares
may not be lower than the price per share paid to the Transferor in the same or
related transaction; and (y) the consideration for the Drag-Along Shares shall
be paid in cash at the closing of the Drag-Along Transaction(s) unless the
relevant Drag-Along Party consents to payment in a form other than cash or, at
the option of the relevant Drag-Along Party, in the same form of payment as
received by the Transferor.
4.2 If TCW or any of its Affiliates (a "TCW ENTITY")
proposes to Transfer to any Affiliate thereof any of the Common Stock held by
such TCW Entity, then such TCW
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Entity, as a condition to the Transfer, shall cause such Affiliate to agree to
be bound by this SECTION 4 and such Affiliate shall thereupon be deemed to be a
party hereto and shall notify ▇▇▇▇▇ of the identity and address of such
Affiliate. Thereupon such Affiliate shall also be deemed a "Drag-Along Party"
for purposes of this Agreement. The drag-along rights set forth in this SECTION
4 shall not be applicable to transferees of the Drag-Along Party other than to
other Affiliates of such Drag-Along Party.
4.3 To exercise a drag-along right, Transferor shall give
written notice (the "DRAG-ALONG NOTICE") to the Drag-Along Party against whom
the right is to be enforced at least fifteen (15) business days prior to any
proposed Transfer of Common Stock. The notice shall specify the terms of such
Transfer and certify as to the facts supporting exercise of the drag-along right
and include a copy of the contract between the Transferor and Transferee to
consummate the Drag-Along Transfer (the "SALE CONTRACT"), if such a Sale
Contract has been signed . During the Drag-Along Period (as defined below), the
Drag-Along Party in receipt of the Drag-Along Notice may not Transfer any
Securities subject to Transferor's drag-along rights under this SECTION 4 to any
Person other than Transferor or the Transferee. The "Drag-Along Period" shall be
the period commencing on the date the Drag Along Notice is given and terminating
on the earlier of (i) the 120th day following delivery of the Drag-Along Notice
or (ii) the date of termination of the Sale Contract.
SECTION 5. BOARD OF DIRECTORS REPRESENTATION
5.1 BOARD OF DIRECTORS REPRESENTATION. From and after the
date hereof, each of ▇▇▇▇▇ and any of its affiliates and successors to the ▇▇▇▇▇
Common Stock and TCW and any of its affiliates and successors to the TCW Common
Stock who hold Voting Stock shall vote their respective shares of Voting Stock
(including any shares of Voting Stock hereafter acquired, owned or controlled by
such Holder), at any regular or special meeting of shareholders of Inland called
for the purpose of filling positions on the Board, or in any written consent
executed in lieu of such a meeting of shareholders, in such a manner that, and
shall otherwise take all actions in their capacities as shareholders necessary
to ensure that, (i) the Board of Inland consists of six (6) members (unless the
Requisite Holders (as defined in the Exchange and Note Issuance Agreement) have
exercised their rights under the Exchange and Note Issuance Agreement and, as a
result of the failure of a then existing director to resign or otherwise, it is
necessary to increase the size of the Board in order to permit the Requisite
Holders to exercise such rights), (ii) for so long as ▇▇▇▇▇ and its Affiliates
hold not less than a majority of the Common Stock, ▇▇▇▇▇ and its Affiliates, as
a group, shall have the right to appoint not less than two individuals
designated for election to, and be elected to, the Board or, if greater, that
number of individuals representing not less than one third of the members of the
Board, and (iii) for so long as there shall be any TCW Sub Notes outstanding and
the provisions of SECTIONS 5.2, 5.3 and 9.2 of the Exchange and Note Issuance
Agreement are applicable, the Requisite Holders shall have the right to have one
or more individuals designated for election to, and be elected to, the Board as
set forth in and pursuant to Sections 5.2, 5.3 and 9.2 of the Exchange and Note
Issuance Agreement. In the event that either the Requisite Holders of TCW Sub
Notes or ▇▇▇▇▇ has a right to replace a member of each Board designated by the
other party with its own designee, ▇▇▇▇▇ or the Requisite Holders of TCW Sub
Notes (as the case may be) shall take all necessary action in their capacities
as shareholders to cause one of its own designees on the Board to resign
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from the Board and to ensure that the individual designated for election by the
other party is elected to the Board.
5.2 DIRECTOR COMPENSATION. Except for the Chairman of the
Board, no member of the Board designated by any party shall be entitled to
receive compensation if such member is an employee, an affiliate, or an employee
of an affiliate of ▇▇▇▇▇ or TCW (an "AFFILIATED DIRECTOR"). Subject to Section
5.2 of the Exchange and Note Issuance Agreement, any member of the Board who is
not an Affiliated Director shall be entitled to receive compensation at such
levels as the Board may determine from time to time. Subject to Section 5.2 of
the Exchange and Note Issuance Agreement, one member of the Board designated by
the Requisite Holders of TCW Sub Notes (whether serving on the board of
directors of Inland or any Subsidiary) and one observer designated by the
Requisite Holders of TCW Sub Notes shall be entitled to reimbursement of
reasonable travel and other expenses at a level not less than that received by
other members of the Board.
5.3 REPRESENTATION ON BOARD COMMITTEES. Each of ▇▇▇▇▇ and
the Requisite Holders of TCW Sub Notes shall have a right to have the director
designated by ▇▇▇▇▇ and the director or observer designated by the Requisite
Holders of TCW Sub Notes, respectively, be appointed to all committees
established by Inland or Subsidiaries of Inland, including without limitation
the audit committee.
5.4 THIRD PARTY BENEFICIARIES. The parties hereto
acknowledge and agree that the Requisite Holders of the TCW Sub Notes are
express third party beneficiaries of this SECTION 5 and shall be entitled to
enforce the provisions hereof. SECTION 6. Waiver of Anti-takeover Rights
SECTION 6. WAIVER OF ANTI-TAKEOVER RIGHTS
To the extent permitted by law, TCW and its affiliates and
▇▇▇▇▇ and its affiliates, expressly waive all rights and claims against TCW or
Inland or ▇▇▇▇▇ or otherwise with respect to the transactions currently
contemplated by the parties hereto or any future or subsequent transactions
under any anti-takeover statutes of applicable law including, but not limited
to, Chapter 19 of the Washington Business Corporation Act (RCW 23B.19.010 -
19.050).
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 ▇▇▇▇▇ hereby represents, warrants and covenants to
TCW that: (a) ▇▇▇▇▇ owns the ▇▇▇▇▇ Common Stock and no other equity securities
of Inland, (b) ▇▇▇▇▇ is the beneficial holder (and has the contractual right to
become the record holder) of the ▇▇▇▇▇ Common Stock and (c) ▇▇▇▇▇ has neither
sold, assigned, conveyed, transferred or otherwise disposed of, in whole or in
part, its securities constituting all or a portion of the ▇▇▇▇▇ Common Stock,
nor, as of the date hereof, has entered into any agreement to sell, assign,
convey, transfer or otherwise dispose of, in whole or in part, such securities.
7.2 TCW hereby represents, warrants and covenants to
▇▇▇▇▇ that: ( a) TCW owns the TCW Common Stock and no other equity securities of
Inland, (b) TCW is the legal and beneficial holder of the TCW Common Stock and
(c) TCW has neither sold, assigned, conveyed, transferred or otherwise disposed
of, in whole or in part, its securities constituting all or a portion
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of the TCW Common Stock, nor, as of the date hereof, has entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or
in part, such securities.
7.3 Each of the ▇▇▇▇▇ record owners set forth on the
signature pages hereto (the "▇▇▇▇▇ RECORD OWNERS") represents that it is a
record owner of certain of the ▇▇▇▇▇ Common Stock beneficially owned by ▇▇▇▇▇ as
of the date hereof, and has agreed to transfer record ownership of such ▇▇▇▇▇
Common Stock to ▇▇▇▇▇. Each of the ▇▇▇▇▇ Record Owners agrees that, for so long
as such ▇▇▇▇▇ Record Owner is the record owner of ▇▇▇▇▇ Common Stock
beneficially owned by ▇▇▇▇▇, (i) ▇▇▇▇▇ shall be deemed to be the record owner of
such ▇▇▇▇▇ Common Stock held by such ▇▇▇▇▇ Record Owner for all purposes under
this Agreement (other than the representations in SECTION 7.1 hereof) and (ii)
such ▇▇▇▇▇ Record Owner shall be bound by all the terms and conditions of this
Agreement on the same basis as ▇▇▇▇▇.
7.4 Inland hereby represents, warrants and covenants to
▇▇▇▇▇ and TCW, as of the date hereof and immediately thereafter, that the
authorized capital stock of Inland will consist solely of (i) 25,000,000 shares
of Common Stock, of which 2,897,732 shares of will be issued and outstanding and
(ii) 20,000,000 shares of preferred stock, of which no shares will be issued and
outstanding. As of the date hereof and immediately thereafter, all of the
outstanding shares of the Company's capital stock shall be duly authorized,
validly issued, fully paid and nonassessable.
SECTION 8. PREEMPTIVE RIGHTS
8.1 Inland hereby grants to TCW and ▇▇▇▇▇ the right to
purchase a pro rata share of New Securities (as defined in this SECTION 8.1)
which Inland may, from time to time, propose to sell and issue. Each of TCW's or
▇▇▇▇▇'▇ pro rata share, for purposes of this right, is the ratio of the number
of shares of Common Stock owned by TCW or ▇▇▇▇▇, as the case may be, immediately
prior to the issuance of the New Securities, to the total number of shares of
Common Stock held by all holders of Common Stock immediately prior to the
issuance of the New Securities. This right shall be subject to the following
provisions:
(a) "NEW SECURITIES" shall mean any capital stock of
Inland whether now authorized or not, and rights, options or warrants to
purchase such capital stock, and securities of any type whatsoever that are, or
may become, convertible into capital stock; PROVIDED that the term "New
Securities" does not include (i) securities issued in connection with a merger,
acquisition, reorganization or other similar transaction undertaken by Inland;
(ii) any borrowings, direct or indirect, from financial institutions or other
persons by Inland, whether or not presently authorized, including any type of
loan or payment evidenced by any type of debt instrument, even if such
borrowings have equity features including warrants, options or other rights to
purchase capital stock and are not convertible into capital stock of Inland;
(iii) securities issued to employees, consultants, officers or directors of
Inland pursuant to any stock option, stock purchase bonus plan, warrant,
agreement or arrangement approved by the Board of Directors; (iv) securities
issued in connection with obtaining lease financing, whether issued to a lessor,
guarantor or other person and such issuance is undertaken for purposes primarily
other than equity financing; (v) securities issued in connection with any stock
split, stock dividend or recapitalization of Inland; and (vi) any right, option
or warrant to acquire any security
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convertible into the securities excluded from the definition of New Securities
pursuant to subsections (i) through (v) above.
(b) In the event Inland proposes to undertake an issuance
of New Securities, it shall give TCW and ▇▇▇▇▇ (and their respective Affiliate
transferees of which Inland has received notice of the name and address of such
transferee) written notice of its intention, describing the type of New
Securities, their price and the general terms upon which Inland proposes to
issue same. TCW or ▇▇▇▇▇ (or their respective Affiliates) shall have ten (10)
business days after any such notice is received to agree to purchase TCW's or
▇▇▇▇▇'▇ pro rata share of such New Securities for the price and upon the terms
specified in the notice by giving written notice to Inland and stating therein
the quantity of New Securities to be purchased.
(c) In the event TCW or ▇▇▇▇▇ (or their respective
Affiliates) fail to exercise fully the right within said ten (10) business day
period, Inland shall have one hundred eighty (180) business days thereafter to
sell or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within one hundred eighty (180)
business days from the date of said agreement) to sell the New Securities
respecting TCW's or ▇▇▇▇▇'▇ (or their respective Affiliate's) right option set
forth in this SECTION 8.1, at a price and upon terms no more favorable to the
purchasers thereof than specified in Inland's notice to TCW and ▇▇▇▇▇ pursuant
to SECTION 8.1(B). In the event Inland has not sold the New Securities within
such one hundred eighty (180) business day period or entered into an agreement
to sell the New Securities in accordance with the foregoing within one hundred
eighty (180) business days from the date of said agreement, Inland shall not
thereafter issue or sell any New Securities, without first again offering such
securities to TCW and ▇▇▇▇▇ (and its Affiliates) in the manner provided in
SECTION 8.1(B) above.
(d) If the preemptive rights under this SECTION 8 are
exercised by the affiliates of TCW or ▇▇▇▇▇, (i) such affiliates must act
together with TCW or ▇▇▇▇▇ as a group, as applicable, in the exercise of the
rights under this SECTION 8; and (ii) as a condition to the purchase of the New
Securities by such affiliates, each such affiliate must agree to be bound by
SECTION 4 of this Agreement as if it were a party hereto and, if it has not
already done so, it must notify ▇▇▇▇▇ of its identity and address.
(e) The preemptive rights under this SECTION 8 shall not
be assignable by either TCW or ▇▇▇▇▇ other than to a respective affiliate
thereof which also acquires Common Stock therefrom.
(f) The preemptive rights of TCW (and any affiliate
transferee thereof) shall terminate at any time that (i) TCW and its affiliate
transferees collectively own less than 50% of the TCW Common Stock or (ii) as a
result of the failure by TCW (and its affiliate transferees) on one or more
occasions to exercise preemptive rights hereunder, and/or the transfer of TCW
Common Stock by TCW and its affiliates, TCW and its affiliates, collectively,
own shares of Common Stock which constitute less than four percent (4%) of the
Common Stock then outstanding.
9
SECTION 9. MISCELLANEOUS
9.1 ATTORNEY'S FEES AND EXPENSES. If any party hereto
fails to perform any of its obligations under this Agreement, then the
defaulting party shall pay any and all costs and expenses incurred by the other
party on account of such default, including, without limitation, court costs and
reasonable attorneys' fees and disbursements. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this Agreement shall be recoverable separately from and in addition to any other
amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
9.2 SUCCESSORS AND ASSIGNS; TERMINATION. Except as
otherwise expressly provided herein, this Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of the parties
hereto; PROVIDED, HOWEVER, (i) this Agreement shall terminate and not apply when
(a) Common Stock is no longer held by ▇▇▇▇▇, TCW or their respective affiliates
and (b) no TCW Sub Notes are outstanding, and (ii) any transferee (or successor)
of Voting Stock from ▇▇▇▇▇ during the time any TCW Sub Notes shall be
outstanding shall be bound by SECTION 5 and SECTION 9 hereof and ▇▇▇▇▇ (and
Smith's successors) shall condition any transfer of such Voting Stock on the
prospective transferee's written acknowledgement of the foregoing and agreement
to be bound thereby.
9.3 AMENDMENT AND WAIVER, ETC. This Agreement may be
amended, but only with the written consent of each of the parties hereto. No
failure or delay (whether by course of conduct or otherwise) by the parties
hereto in exercising any right, power or remedy which they may have under this
Agreement shall operate as a waiver thereof or of any other right, power or
remedy, nor shall any single or partial exercise by the parties hereto of any
such right, power or remedy preclude any other or further exercise thereof or of
any other right, power or remedy. No waiver of any provision of this Agreement
and no consent to any departure therefrom shall ever be effective unless it is
in writing and signed by each party being adversely affected by such waiver or
consent, and then such waiver or consent shall be effective only in the specific
instances and for the purposes for which given and to the extent specified in
such writing. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to the parties at law or in
equity or otherwise.
9.4 COUNTERPARTS. Two or more duplicate originals of this
Agreement may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument.
9.5 SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
9.6 SPECIFIC PERFORMANCE. Each party recognizes that
money damages may be inadequate to compensate the other parties for a breach
hereunder, and each party irrevocably agrees that the other parties shall be
entitled to the remedy of specific performance or the granting of such other
equitable remedies as may be awarded by a court of competent
10
jurisdiction in order to afford each party the benefits of this Agreement and
that each party shall not object and hereby waives any right to object to such
remedy or such granting of other equitable remedies on the grounds that money
damages will not be sufficient to compensate the other parties.
9.7 NOTICES. All notices, requests, consents, demands and
other communications required or permitted under this Agreement shall be in
writing and shall be deemed sufficiently given or furnished upon delivery, when
delivered by personal delivery, by telecopy, by delivery service with proof of
delivery, or three (3) days after being deposited in the U.S. mail as registered
or certified United States mail, postage prepaid, at the addresses set forth on
the signature pages hereto (unless changed by similar notice in writing given by
the particular person whose address is to be changed).
9.8 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of Washington.
9.9 ORIGINAL AGREEMENT; ENTIRE AGREEMENT. Upon execution
of this Agreement by the parties hereto, the Original Agreement shall be
automatically amended and restated in full as provided herein as of the date
hereof. This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof, superseding all prior negotiations,
preliminary agreements, correspondence or understandings, written or oral
between the parties with respect to the subject matter hereof. Except as
expressly provided herein, there are no representations or warranties of any
party hereto.
11
IN WITNESS WHEREOF, the parties hereto have executed this
Shareholders Agreement as of the day and year first above written.
INLAND RESOURCES INC.,
a Washington corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To:
Glast, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co.
2200 One Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
INLAND HOLDINGS LLC, a California limited
liability company,
By: TRUST COMPANY OF THE WEST, a California
trust company, as Sub-Custodian for
Mellon Bank for the benefit of Account
No. CPFF 873-3032, Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
By: TCW PORTFOLIO NO. 1555 DR V SUB-CUSTODY
PARTNERSHIP, L.P., a California limited
partnership, Member
By: TCW ROYALTY COMPANY, a California
corporation, Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
HAMPTON INVESTMENTS, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
Hampton Investments LLC
c/o Smith Management LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGED AND ACCEPTED:
TRUST COMPANY OF THE WEST,
a California trust company, as Sub-Custodian
for Mellon Bank for the benefit of Account
No. CPFF 873-3032
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies To:
TCW Asset Management Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇