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EXHIBIT 99(B)
STOCKHOLDERS AGREEMENT dated as of May __, 1997 by and among:
(a) the persons or entities listed in Exhibit 1 annexed hereto (the "▇▇▇▇
Group") acting through ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. (the "▇▇▇▇ Representative"); (b) the
persons or entities listed in Exhibit 2 annexed hereto (the "▇▇▇▇▇ Group")
acting through ▇. ▇. ▇▇▇▇▇ Investment Banking Corp. (the "▇▇▇▇▇
Representative"); (c) the entities listed in Exhibit 3 annexed hereto (the
"Lomak Group") acting through Lomak Petroleum, Inc. (the "Lomak
Representative").
WHEREAS, the ▇▇▇▇▇ Group owns 1,036,512 shares of the Common
Stock of Xplor and warrants to acquire an additional 30,000 of the Common Stock
of Xplor; and
WHEREAS, pursuant to the terms of a Property Acquisition
Agreement dated as of April 29, 1997 (the "Exchange Agreement"), the members
of the ▇▇▇▇ Group own beneficially 3,553,896 shares of the Common Stock of
Xplor and warrants to acquire an additional 172,023 shares of the Common Stock
of Xplor; and
WHEREAS, of the shares of Common Stock of Xplor owned by the
▇▇▇▇ Group 372,599 are subject to transfer to Stratum Corp. ("Stratum shares")
43,199 are owned by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or subject to warrants ("JWM Director
Shares") and 199,796 are owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or subject to warrants ("JWG
Director Shares").
WHEREAS, pursuant to the terms of the Exchange Agreement and
the acquisition of additional shares of the Common Stock of Xplor from the
▇▇▇▇▇ Group contemplated therein, the Lomak Group owns beneficially 2,134,179
shares of the Common Stock of Xplor and warrants to acquire an additional
192,353 shares of the Common Stock of Xplor; and
WHEREAS, it is a condition to the obligations of the parties
to the Exchange Agreement that this Agreement be executed by the parties
hereto, and the parties are willing to execute this Agreement and to be bound
by the provisions hereof;
NOW, THEREFORE, in consideration of the premises, the
agreements set forth below, and the parties' desire to further the interests of
Xplor and its present and future stockholders, the parties agree as follows:
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1. Definitions. As used in this Agreement, the term "Shares"
means all shares of the Common Stock of Xplor (a) now or hereafter owned
(either beneficially or of record) by any member of the ▇▇▇▇ Group or by any
member of the ▇▇▇▇▇ Group or by any of the Lomak Entities or by any affiliate
of any of them or (b) which a member of the ▇▇▇▇ Group, the ▇▇▇▇▇ Group or the
Lomak Entities does not own (either beneficially or of record) but as to which
it now or hereafter it or he has the right to exercise voting control. As used
herein, "beneficial" ownership shall be determined in accordance with
Securities and Exchange Commission Rule 13d-3.
2. Designation of Nominees.
(a) Subject to Section 8 hereof:
(i) during the term of the Agreement the ▇▇▇▇ Group shall
have the right to designate four nominees for election as
directors of Xplor (together, the "▇▇▇▇ Nominees", and
individually an "▇▇▇▇ Nominee"). The initial ▇▇▇▇ Nominees
are ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ who shall be elected directors of Xplor
effective upon the Closing under the Exchange Agreement and
take office as soon as permitted by Securities and Exchange
Commission Rule 14f-1;
(ii) the ▇▇▇▇▇ Group shall have the right to designate two
nominees for election as directors of Xplor (together, the
"▇▇▇▇▇ Nominees", and individually a "▇▇▇▇▇ Nominee") for the
one year term commencing with the Annual Meeting to be held in
1997 and the right to designate one nominee for election as a
director of Xplor for the one year term commencing with the
Annual Meeting to be held in 1998. The initial ▇▇▇▇▇ Nominees
are ▇▇▇▇▇▇ ▇. ▇▇▇▇ and J. ▇▇▇▇▇▇ ▇▇▇▇▇ who are currently in
office and shall remain so when the ▇▇▇▇ Nominees and the
Lomak Nominee take office as herein provided; and
(iii) during the term of the Agreement the Lomak Group shall
have the right to designate one nominee for election as a
director of Xplor (the "Lomak Nominee"). The initial Lomak
Nominee is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ who shall be elected a director
of Xplor effective upon the Closing under the
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Exchange Agreement and take office as soon as permitted by
Securities and Exchange Commission Rule 14f-1.
(b) The ▇▇▇▇▇ Group, the ▇▇▇▇ Group and the Lomak Group shall
each cause its nominees who are directors to nominate the designees as the
management slate of directors.
(c) At least 50 days prior to any meeting (or written action
in lieu of a meeting) of stockholders of Xplor at or by which directors are to
be elected, each party entitled to name Nominee(s) for director(s) of Xplor
shall notify the other such parties and Xplor in writing of such party's
Nominee(s) for election as director(s), together in each case with information
about such Nominee(s) necessary for Xplor to comply with applicable disclosure
requirements. In the absence of any such notification, it shall be presumed
that the then incumbent Nominee(s) have been redesignated as the respective
party's Nominee(s).
3. Voting. (a) From and after the date hereof, each of the
▇▇▇▇ Group, the ▇▇▇▇▇ Group and the Lomak Group shall vote all Shares at each
meeting (or written action in lieu of a meeting) of stockholders of Xplor to
elect, as directors of Xplor the Nominees designated in the manner provided in
Section 2 and shall vote all Shares against any proposal having the effect of
increasing the Board of Xplor to more than seven directors.
4. Successor Directors. If a Nominee shall cease to serve as
a director for any reason, the party which designated such person shall have
the right to designate a successor Nominee and the parties shall use their best
efforts to ensure that such successor Nominee is duly elected as a director,
including causing its nominees who are directors so to vote. If a party
notifies the other parties that such party desires to remove a director who
serves as such party's Nominee, the parties shall use their best efforts to
ensure that, consistent with Delaware law and the by-laws of Xplor, that such
director is duly removed as a director, if possible, or that a meeting of
stockholders of Xplor is promptly called for the purpose of electing a new
management slate of directors consistent with the designations of the parties
to this Agreement.
5. Prohibited Transfers. No member of the ▇▇▇▇ Group or the
Lomak Group shall sell, assign, transfer otherwise dispose of all or any Shares
except as expressly provided in this Agreement or as otherwise consented to in
writing by the ▇▇▇▇ Representative and the Lomak Representative. Stratum
Shares may be transferred by the ▇▇▇▇ Group as contemplated by the Letter
agreement between The New Venus Exploration, Inc. and Stratum Corp. dated April
25, 1997. JWM Director Shares and/or JWG Director Shares, as the case may be
transferred without reference
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to this Agreement, including Section 5, 6 and 7 hereof, at such time as ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as the case may be, is no longer a director of
Xplor following his anticipated election as a director of Xplor. Shares may be
pledged hypothecated, mortgaged or encumbered by members of the ▇▇▇▇ Group or
the Lomak Group provided that document issued in connection therewith
specifically provides that the Rights of the holder thereof are subject to all
the terms of this Agreement. Notwithstanding the foregoing, (a) members of the
▇▇▇▇ Group may transfer Shares to any other member of the ▇▇▇▇ Group, and
members of the Lomak Group may transfer any or all of their Shares to one or
more "affiliates" of the Lomak Group (as such term is defined in Securities and
Exchange Commission regulations) in which event each such transferee shall be
bound by all of the provisions of this Agreement to the same extent as if such
transferee were a party hereto; and (b) members of the ▇▇▇▇ Group who are
individuals may transfer any or all of their Shares (i) by way of gift to any
member of their respective families or to any trust for the benefit of any such
persons' family members or the person himself or herself, provided that any
such transferee shall agree in writing with the other parties hereto, as a
condition to such transfer, to be bound by all of the provisions of this
Agreement to the same extent as if such transferee were a party hereto, or (ii)
by will or the laws of descent and distribution, in which event each such
transferee shall be bound by all of the provisions of this Agreement to the
same extent as if such transferee were a party hereto. As used herein, the
word "family" shall include any spouse, lineal ancestor or descendant, brother
or sister.
6. Right of First Refusal.
(a) If at any time any member of the ▇▇▇▇ Group or the Lomak
Group (a "Selling Stockholder") desires to sell its Shares (other than pursuant
to a transfer permitted pursuant to Section 5 hereof) pursuant to a bona fide
offer from a third party (the "Proposed Transferee"), the Selling Stockholder,
if a member of the ▇▇▇▇ Group shall submit a written offer (the "First Offer")
to sell such Shares (the "Offered Shares") to the Lomak Representative and, if
a member of the Lomak Group to the ▇▇▇▇ Representative on behalf of their
respective groups ("Non-Selling Stockholders") on terms and conditions,
including price, not less favorable to the Non-Selling Stockholders than those
on which the Selling Stockholder proposes to sell such Offered Shares to the
Proposed Transferee. The First Offer shall disclose the identity of the
Proposed Transferee, the number of Offered Shares proposed to be sold, the
total number of Shares owned by the Selling Stockholder, the terms and
conditions, including price, of the proposed sale, and any other material facts
relating to the proposed sale. Non-Selling Stockholders may acquire, in
accordance with the provisions of this Agreement, all but not any portion of
the Offered Shares for the price and upon the other terms and conditions,
including deferred payment (if applicable), set forth therein.
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(b) If a Non-Selling Stockholder desire to purchase the
Offered Shares, the Non-Selling Stockholder shall communicate in writing its
election to purchase to the Selling Stockholder, within 7 days of the date the
First Offer was made. Such communication shall, when taken in conjunction with
the First Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares. Sales
of the Offered Shares to be sold to the Non-Selling Stockholders pursuant to
this Section 6 shall be made at the offices of the Selling Stockholder on the
12th day following the date the First Offer was made (or if such 12th day is
not a business day, then on the next succeeding business day). Such sales
shall be effected by the Selling Stockholder's delivery to the Non-Selling
Stockholder of a certificate or certificates evidencing the Offered Shares to
be purchased by it, duly endorsed for transfer to such Non-Selling Stockholder,
against payment to the Selling Stockholder of the purchase price therefor by
such Non-Selling Stockholder.
(c) If the Non-Selling Stockholders do not elect to purchase
the Offered Shares, the Offered Shares may be sold by the Selling Stockholder
at any time within 30 days after the date the First Offer was made, subject to
the provisions of Section 6 and 7. Any such sale shall be to the Proposed
Transferee, at not less than the price and upon other terms and conditions, if
any, not more favorable to the Proposed Transferee than those specified in the
First Offer. Any remaining Shares not sold within such 30-day period shall
continue to be subject to the requirements of prior offers pursuant to this
Section 6. If Offered Shares are sold pursuant to this Section 6 to any person
who is not a party to this Agreement, the Offered Shares so sold shall no
longer be subject to any of the restrictions imposed by this Agreement.
(d) Notwithstanding the foregoing subsections (a) through (c)
of this Section 6. if a Selling Stockholder wishes to sell Shares pursuant to
Rule 144 (or its successor provision), the Non-Selling Stockholder shall have
the right, exercisable within 7 business days following receipt of a Form 144
notice of sale, to purchase the Shares subject to such notice at the closing
price of the Shares on the first trade date immediately before the date of the
filing of such notice. If any Non-Selling Shareholder elects to purchase such
Shares the closing will be effected within 3 business days following its
election to purchase. If the Non-Selling Shareholder elect not to purchase,
the Selling Shareholder shall be free to sell the Shares covered by the notice
for a period of 30 days thereafter.
7. Right of Participation in Sales by ▇▇▇▇ Group or Lomak
Group.
(a) If at any time member(s) of the ▇▇▇▇ Group or members of
the Lomak Group ("Participation Seller") desire to sell in the aggregate
thirty-five percent or more of the Participation Seller's then outstanding
ownership of Shares for cash or other consideration (other than pursuant to a
transfer permitted pursuant to Section 5 hereof) to any third party (the
"Buyer"), the other party, i.e. the ▇▇▇▇ Group or The Lomak
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Group, as the case may be (the "Other Party") shall have the right to sell to
the Buyer, as a condition to such sale by the Participation Seller, at the same
price per share and on the same terms and conditions as involved in such sale
by the Participation Seller, the same percentage of the Shares owned by the
Other Party as the Shares to be sold by the Participation Seller to the Buyer
represents with respect to the Shares owned by the Participation Seller
immediately prior to the sale of any of such Participation Seller's Shares to
the Buyer. The obligation hereunder with respect to a party shall cease at
such time as that party owns less than 5% of the then outstanding shares of
Xplor.
(b) The Other Party shall notify the Participation Seller in
writing of such intention as soon as practicable and in any event within ten
business days after the date the First Offer was made. Such notification shall
be given to such Participation Seller in accordance with Section 10 below.
(c) The Participation Seller and the Other Party shall sell to
the Buyer all, or at the option of the Buyer, any part of the Shares proposed
to be sold by them at not less than the price and upon other terms and
conditions, if any, not more favorable to the Buyer than those in the First
Offer provided by the Participation Seller under Section 6 above; provided,
however, that any purchase of less than all of such Shares by the Buyer shall
be made from the Participation Seller and the Other Party, pro rata, based upon
the relative amount of the Shares that the Participation Seller and the Other
Party is otherwise entitled to sell pursuant to Section 7(a).
(d) Any Shares sold by the Participation Seller or the Other
Party pursuant to this Section 7 shall no longer be subject to this Agreement.
8. Term. This Agreement shall continue through the third
anniversary of the date of this Agreement, provided, that the rights and
obligations of any party hereunder shall cease at such time that such party
owns beneficially fewer than 250,000 Shares.
9. Specific Enforcement. Each of parties hereto expressly
agrees that the other parties will be irreparably damaged by a breach of this
Agreement if this Agreement is not specifically enforced. Upon a breach or
threatened breach of the terms, covenants and/or conditions of this Agreement
by any party, a non-breaching party shall, in addition to all other remedies,
be entitled to a temporary or permanent injunction, without showing any actual
damage, and/or a decree for specific performance, in accordance with the
provisions hereof.
10. Notices. All notices or other communications given
hereunder shall be in writing and shall be deemed effective upon delivery at
the address of the party to be notified and shall be mailed by certified or
registered mail, return receipt requested, delivered by courier, telecopied, or
sent by other facsimile method (notices by telecopy
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or facsimile must be confirmed by next day courier delivery to be effective),
addressed to the ▇▇▇▇ Representative in the case of notices to the ▇▇▇▇ Group
or any member thereof, to the ▇▇▇▇▇ Representative in the case of notices to
the ▇▇▇▇▇ Group or any member thereof, or to the Lomak Representative, as the
case may be, at the address specified on the signature pages hereto or such
other address as such party may subsequently notify the other parties of in
writing.
11. Entire Agreement and Amendments. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and neither this Agreement nor any provision hereof may be
waived, modified, amended or terminated except by a written agreement signed by
Xplor, and to the extent that the ▇▇▇▇ Group, the ▇▇▇▇▇ Group and/or the Lomak
Group still have the right to have designees on the Board of Directors pursuant
to Section 2, the ▇▇▇▇ Representative, the ▇▇▇▇▇ Representative and/or the
Lomak Representative, as the case may be
12. Designation of Representatives; Power of Attorney. Each
member of the ▇▇▇▇ Group, the ▇▇▇▇▇ Group and each of the Lomak Group,
respectively by his, her or its execution of this Agreement, hereby irrevocably
constitutes, appoints and designates the ▇▇▇▇ Representative, ▇▇▇▇▇
Representative, the Lomak Representative respectively, named above as his, her
or its representative and attorney-in-fact for all purposes of this Agreement
with the authority to act for such member with the power, among other things:
(a) to perform the duties and functions assigned to the ▇▇▇▇ Representative,
▇▇▇▇▇ Representative and the Lomak Representative named above as the case may
be, under this Agreement; (b) to receive notices to such member hereunder and
to agree to, execute and deliver any and all agreements, amendments, waivers,
consents and other documents in connection herewith; (c) to execute in such
member's name and on his, her or its behalf any and all filings with the
Securities and Exchange Commission which may be required by the Securities
Exchange Act of 1934, including without limitation Schedule 13D thereunder and
any amendments thereto. The other parties may conclusively rely upon the
appointment effected hereby, and any action taken by the ▇▇▇▇ Representative or
the ▇▇▇▇▇ Representative and the Lomak Representative named above hereunder
shall be binding on all members of their respective Groups, whether any such
members consented thereto or not.
13. Governing Law: Successors and Assigns. This Agreement
shall be governed by, and construed in accordance with, the laws of the State
of Delaware without regard to the principle of conflicts of laws and shall bind
and inure to the benefit of the heirs, personal representatives, executors,
administrators, successors and assigns of the parties.
14. Captions. Captions are for convenience only and are not
deemed to be part of this Agreement.
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15. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first above written.
THE ▇▇▇▇ GROUP (Listed in Exhibit 1)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
THE ▇▇▇▇▇ GROUP (Listed in Exhibit 2)
By: ▇.▇. ▇▇▇▇▇ Investment Banking Corp.
By:
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President
THE LOMAK GROUP (Listed in Exhibit 3)
By: Lomak Petroleum, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President
XPLOR CORPORATION
By:
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EXHIBIT 1
Each of the undersigned hereby designates ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
or a successor selected by a majority in interest in Xplor Common Stock of the
undersigned, in writing, the ▇▇▇▇ Representative under the Agreement authorized
to take any and all actions set forth for the ▇▇▇▇ Representative thereunder.
Name Signature Xplor Xplor
Common Warrants
Owned Owned
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E.L. ▇▇▇▇▇, Jr. 295,303 14,290
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▇▇▇▇▇ ▇.▇. ▇▇▇▇ 1,168,211 56,548
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▇▇▇▇ ▇. ▇▇▇▇ 452,449 21,901
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 262,373 12,700
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▇▇▇▇▇▇ ▇. ▇▇▇▇,III 262,373 12,700
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 262,373 12,700
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▇▇▇▇▇▇ ▇. ▇▇▇▇ 8,241 399
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▇▇▇▇ ▇▇▇▇▇▇, Trustee 4,120 199
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 149,350 7,229
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 4,120 199
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 45,284 2,192
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Venus Oil Company 407,924 19,746
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 189,823 9,973
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 41,204 1,995
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EXHIBIT 2
Each of the undersigned hereby designates ▇.▇. ▇▇▇▇▇
Investment Banking Corp. or a successor selected by a majority in interest in
Xplor Common Stock of the undersigned, in writing, the ▇▇▇▇▇ Representative
under the Agreement authorized to take any and all actions set forth for the
▇▇▇▇▇ Representative thereunder
Name Signature Xplor Xplor
Common Warrants
Owned Owned
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▇.▇. ▇▇▇▇▇ Investment
Banking Corp.
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Rivkalex Corp.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Parliament Hill
Corporation
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EXHIBIT 3
Each of the undersigned hereby designates Lomak Petroleum,
Inc. or a successor selected by a majority in interest in Xplor Common Stock of
the undersigned, in writing, the Lomak Representative under the Agreement
authorized to take any and all actions set forth for the Lomak Representative
thereunder
Name Signature Xplor Xplor
Common Warrants
Owned Owned
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Lomak Production I L.P. by: Lomak Production Company 1,899,419 171,194
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General Partner
by:
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Lomak Resources, L.L.C. by: Lomak Production Company, 234,760 21,159
--------------------------
A Member
by:
----------------------
by: Lomak Resources Company
--------------------------
A Member
by:
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