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EXHIBIT 99.9
STOCKHOLDERS AGREEMENT (TRANSCONTINENTAL)
This STOCKHOLDERS AGREEMENT (this "Agreement") is made and
entered into as of December __, 1998, by and among TransContinental Refining
Corporation, a Delaware corporation (the "Company"), TCR Holding Corporation, a
Delaware corporation ("TCR Holding"), and each of the other parties signatories
hereto who hold Securities (as defined below) (the "Preferred Holders" and,
together with TCR Holding, the "Initial Holders").
W I T N E S S E T H
WHEREAS, TCR Holding owns all of the issued and outstanding
shares of common stock, par value $.01 per share, of the Company (the "Common
Shares");
WHEREAS, the Preferred Holders own all of the issued and
outstanding shares of 6% Participating Convertible Preferred Stock, par value
$.01 per share, of the Company (the "Preferred Shares");
WHEREAS, the Company and each of the Initial Holders deem it
to be in their best interests to provide for continuity in the control and
operation of the Company, for restrictions on the transfer of certain
securities and for various other matters set forth herein.
NOW, THEREFORE, in consideration of the agreements and mutual
covenants set forth herein, the parties agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms have the following meanings:
"Affiliate" means, with respect to any specified Person, (i)
any subsidiary of such Person, (ii) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person, (iii) any other Person that owns, directly or
indirectly, 10% or more of such specified Person's capital stock, (iv) any
officer or director of (A) any such specified person, (B) any subsidiary of
such specified Person, or (C) any Person described in clause (ii) or (iii)
above or (v) any other Person having a relationship with any natural Person by
blood, marriage or adoption not more remote than first cousin or any Person
directly or indirectly controlling or controlled by or under common control
with such other Person described in this clause (v). For purposes of this
definition, (i) "control," with respect to any specified Person, means the
possession of the power, whether or not exercised, to direct or cause the
direction of the management or policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing and (ii) none of the Preferred Holders shall be deemed to be an
Affiliate of either TCR Holding or the Company.
"Agreement" shall mean this Stockholders Agreement.
"Bankruptcy Code" shall mean Title 11 of the United States
Code entitled "Bankruptcy," as amended, or any successor statute.
"Board" shall mean the Board of Directors of the Company.
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"Holder" shall mean the Initial Holders and any other Person
that is a party to this Agreement and holds Securities, whether by succession
to or assignment from an Initial Holder or otherwise.
"Initial Public Offering" means a firm commitment,
underwritten public offering of Common Shares of the Company registered under
the Securities Act, other than a registration relating solely to a transaction
under Rule 145 promulgated under the Securities Act or to an employee benefit
plan of the Company, that results in (i) proceeds to the Company and/or any
selling stockholders of not less than $100 million, (ii) total market
capitalization of outstanding Common Shares (on a fully diluted basis) of $500
million and (iii) such Common Shares being listed on the American Stock
Exchange or the New York Stock Exchange or quoted for trading on the Nasdaq
National Market tier of the Nasdaq Stock Market or any of their respective
successors.
"Jefferies" shall mean Jefferies & Company, Inc. and any
Affiliate thereof that holds at any time any of the Securities.
"Majority Preferred Holders" shall mean a majority of the
Preferred Shares held of record by Jefferies, the TCW Funds and their respective
Affiliates, so long as such Persons hold at least 25% of the outstanding
Preferred Shares, and, thereafter, shall mean the Preferred Holders of record
holding a majority of the then outstanding Preferred Shares.
"Major Decisions" has the meaning assigned to such term in
Section 4(c)(1).
"Notes" shall mean the 15% Senior Secured Notes due 2003 of
TARC, which Notes are to be assumed by the Company on the date hereof.
"Notes Trigger Event" shall mean the earlier of (i) a default
by the Company in the payment of principal, interest or any other amount owing
under the Notes when such payment shall become due (without regard to any
applicable cure period) (a "Payment Default") or (ii) a default (other than a
Payment Default) by the Company under the Notes, which default results in the
principal and interest owing under the Notes becoming accelerated.
"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.
"Preferred Stock Trigger Event" shall mean (i) the Company
shall be in default of its obligations under the Certificate of Designation of
the Preferred Shares, (ii) TCR Holding or TARC shall be in breach of its
obligations under the TCR Holding Stockholders Agreement, (iii) the Company or
TCR Holding shall be in breach of its obligations under this Agreement or (iv)
this Agreement or the TCR Holding Stockholders Agreement shall have terminated
for any reason other than strictly in accordance with its terms.
"Repurchase Date" shall mean the date on which TEC or its
assignee consummates the repurchase of certain capital stock of TCR Holding
pursuant to the exercise of its rights under that certain Repurchase Rights
Agreement dated as of the date hereof among TEC and the holders of the Series B,
C and D Junior Participating Preferred Stock of TCR Holding.
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"Securities" shall mean the Common Shares and the Preferred
Shares and any other shares of capital stock (and any securities, including
warrants, convertible into, exchangeable for or otherwise exercisable for
shares of capital stock) of the Company existing on the date of this Agreement
or issued hereafter.
"Securities Act" has the meaning assigned to such term in
Section 2(a)(ii).
"TARC" shall mean TransAmerican Refining Corporation, a
Texas corporation.
"TCR Holding" shall have the meaning assigned to such term
in the introductory paragraph to this Agreement.
"TCR Holding Stockholders Agreement" shall mean the
Stockholders Agreement of even date herewith by and among TCR Holding, TARC and
the Preferred Holders.
"TCW Funds" shall mean each of the parties to this Agreement
listed as a "TCW Fund" on the signature pages hereto and any Affiliate of such
party that holds at any time any of the Securities.
"TEC" shall mean TransAmerican Energy Corporation, a Delaware
corporation.
"Third Party" shall mean with respect to any proposed
transferee of Securities, any Person other than an Affiliate of the proposed
transferor of such Securities.
"Transfer" has the meaning assigned to such term in Section
2(a).
"Transferee" has the meaning assigned to such term in Section
2(a).
"Transferor" has the meaning assigned to such term in Section
2(a).
SECTION 2. GENERAL PROVISIONS REGARDING TRANSFER.
(a) General Restrictions. So long as this Agreement shall
remain in force, no Securities may be issued, sold, assigned, transferred,
given away or in any way disposed of (any of the foregoing being hereinafter
referred to as a "Transfer") unless:
(i) the Person in whose favor such Transfer is made (a
"Transferee") shall deliver to the Company and the Holders a
written acknowledgment of such Transferee that the Securities
to be transferred are subject to this Agreement and that such
Transferee and such Transferee's successors in interest and
assigns are bound hereby;
(ii) if such Transfer shall be made other than pursuant
to a public offering registered under the Securities Act of
1933, as amended (the "Securities Act"), and in accordance
with applicable state law, the Transferor shall give to the
Company, if reasonably requested by the Company, a written
opinion in form and substance reasonably satisfactory to the
Company's legal counsel to the effect that the proposed
Transfer may be effected without registration under the
Securities
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Act or any applicable state law; provided, that no such
opinion of counsel shall be required in connection with the
resale of Preferred Shares by the initial purchasers thereof
pursuant to the Purchase Agreement dated December___, 1998 by
and among TARC, TCR Holding, the Company, the TCW Funds and
Jefferies; and
(iii) the Person proposing to make such Transfer (the
"Transferor") shall (A) take all such actions and execute and
deliver all such documents as may be necessary or reasonably
requested by the Company in order to consummate the Transfer
of such Securities to such Transferee and (B) pay to the
Company such amounts as may be required for any applicable
stock transfer taxes
Any attempted Transfer other than in accordance with this Agreement shall be
void, and the Company shall refuse to recognize any such Transfer and shall not
reflect on the Company's records any change in record ownership of the
Securities pursuant to any such attempted Transfer.
(b) Pledge and Hypothecation Prohibited. Prior to an Initial
Public Offering, without the prior written consent of the Majority Preferred
Holders, TCR Holding shall not in any manner pledge, hypothecate or encumber,
or grant options with respect to, any Securities; provided that,
notwithstanding this restriction, TCR Holding (i) may pledge its Common Shares
to TEC solely for the purpose of securing repayment (not to exceed $50 million
in aggregate principal amount) under the promissory note dated October 1, 1998
originally issued by TARC to TEC (which note was assumed on the date hereof by
TCR Holding), (ii) may subject its Common Shares to the forced sale right
granted in the Certificate of Designations of the Class A Voting Preferred
Stock, Series A, par value $.01 per share, of TCR Holding or (iii) may pledge
its Common Shares to TARC solely for the purpose of securing payment (not to
exceed $920 million in aggregate principal amount) under the intercompany note
to be issued to TARC upon exchange of the Class A Voting Preferred Stock,
Series A, par value $.01 per share, of TCR Holding.
SECTION 3. TAG-ALONG AND DRAG-ALONG
(a) Tag-Along. If, at any time (i) after the Repurchase Date
or (ii) so long as a Preferred Stock Trigger Event relating to a breach of
Section 4(a) of this Agreement or Section 4(c) of the TCR Holding Stockholders
Agreement has occurred and is continuing, TCR Holding proposes to Transfer any
Common Shares to a Third Party, then, at least fifteen (15) days prior to any
such Transfer, TCR Holding shall provide to the Preferred Holders a notice (a
"Tag-Along Notice") delivered in accordance with Section 7(a) hereof explaining
the terms of such Transfer and identifying the name and address of the Third
Party. If such notice is sent, then, upon the written request of any such
Preferred Holder made within ten (10) days after the day the Tag-Along Notice
is received by such Preferred Holder, TCR Holding shall cause the Third Party
to purchase from such Preferred Holder a number of Common Shares equal to (i) a
fraction (expressed as a percentage) equal to (A) the total number of Common
Shares issuable upon conversion of the Preferred Shares held by such Preferred
Holder divided by (B) the total number of Common Shares (on a fully diluted
basis) of the Company, multiplied by (ii) the total number of Common Shares
proposed to be Transferred to such Third Party. Such purchase shall be made on
the same date and at the same price and on terms and conditions at least as
favorable to such Preferred Holder as the terms and conditions contained in the
Tag-Along Notice delivered in connection with such proposed transaction.
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(b) Drag-Along Rights. If, at any time prior to the
Repurchase Date and so long as no Preferred Stock Trigger Event relating to a
breach of Section 4(a) of this Agreement or Section 4(c) of the TCR Holding
Stockholders Agreement has occurred and is continuing, TCR Holding proposes to
Transfer a majority of the Common Shares to a Third Party, TCR Holding may, at
its sole option, (i) provide the Preferred Holders at least fifteen (15) days
prior to the date of the proposed Transfer a notice (a "Drag Along Notice")
delivered in accordance with Section 7(a) hereof stating the amount of Common
Shares to be so Transferred to such Third Party and summarizing the economic
terms of such Transfer, including the purchase price, closing date and the
identity of such Third Party and (ii) require each Preferred Holder to sell up
to a number of Securities equal to (x) a fraction (expressed as a percentage)
equal to (A) the total number of Common Shares proposed to be Transferred by
TCR Holding to such Third Party divided by (B) the total number of Common
Shares held by such TCR Holding, multiplied by (y) the total number of Common
Shares issuable upon conversion of the Preferred Shares held by such Preferred
Holder. Such sale shall be made at a price per share to such Preferred Holder
equal to the amount per share received by TCR Holding its Common Shares from
such Third Party and otherwise on the same terms and conditions (including any
escrow or indemnification obligation).
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SECTION 4. BOARD OF DIRECTORS REPRESENTATION AND MANAGEMENT
RIGHTS.
(a) Representation. The bylaws of the Company shall provide
that the Board shall at all times consist of five (5) members. Of the five
members, TCR Holding shall be entitled to designate four (4) members (the "TCR
Holding Designees") and, subject to the following provisions, the Majority
Preferred Holders shall be entitled to designate one (1) member (the "Fifth
Designee"). Initially, Jefferies shall be entitled, exclusively and in its sole
discretion, to designate the Fifth Designee on behalf of the Majority Preferred
Holders until such time as Jefferies (x) refuses or fails to designate the Fifth
Designee upon the written request of the Majority Preferred Holders and such
board seat remains vacant for 5 days or (y) the Fifth Designee fails to attend
three consecutive meetings of the Board after due notice in each instance. After
the Repurchase Date, TARC shall be entitled, exclusively and in its sole
discretion, to designate the Fifth Designee; provided, that if there shall not
have occurred prior to the first anniversary of the Repurchase Date either an
Initial Public Offering or a sale of all or substantially all of the assets of
either TCR Holding or the Company, then the TCW Funds shall be entitled,
exclusively and in their sole discretion, to designate the Fifth Director.
Notwithstanding the foregoing, however, so long as a Preferred Stock Trigger
Event has occurred and is continuing, the Majority Preferred Holders shall be
entitled, exclusively and in their sole discretion, to appoint three (3) of the
five (5) members of the Board and the TCW Funds and TARC each shall be entitled,
exclusively and in their sole discretion, to designate one (1) member. At any
time that the Majority Preferred Holders are entitled to appoint a majority of
the members of the Board, no meeting of the Board shall take place (or if any
meeting takes place, no action taken at such meeting shall be valid) until the
earlier to occur of (i) 30 days after notice shall have been given to or by the
holders of the Preferred Shares that a Preferred Stock Trigger Event shall have
occurred or (ii) the Majority Preferred Shares shall have duly appointed such
members. Any Person entitled to designate a member of the Board pursuant to the
foregoing provisions also shall be entitled, exclusively and in such Person's
sole discretion, to designate such member for removal from the Board. So long as
no Preferred Stock Trigger Event relating to a breach of Section 4(a) of this
Agreement or Section 4(c) of the TCR Holding Stockholders Agreement has occurred
and is continuing, TCR Holding shall select which Board member shall serve as
Chairman of the Board and Vice Chairman of the Board; otherwise the Majority
Preferred Holders shall make such selection.
(b) Major Decisions. Subject to clause (c) below, no action
shall be taken, sum expended, decision made or obligation incurred by or on
behalf of the Company with respect to any matter unless approved or ratified by
a majority of the Board. Notwithstanding the foregoing, unless and until
the Board revokes such authority, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have general authority to
take actions in the ordinary course of business for and on behalf of the
Company, and ▇▇. ▇▇▇▇▇▇▇▇ also may delegate authority to take such actions to
other employees of the Company over which he has supervisory authority;
provided, that, except to the extent set forth on Exhibit A, no such action
shall be taken if such action would constitute a Major Decision. "Major
Decisions" shall mean and consist of the following:
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(i) granting to any individual the authority to open and
draw checks on bank accounts in the name of the Company or
endorse checks for deposit to such accounts;
(ii) the sale, lease or other disposition of assets of the
Company, other than assets having a fair market value,
individually or in the aggregate with assets sold, leased or
otherwise disposed in a transaction or series of related
transactions, of less than $250,000;
(iii) entering into, terminating or materially modifying
either (i) any material agreement to which the Company is or
hereafter becomes a party or (ii) the Environmental
Compliance Plan;
(iv) approving or incurring any capital expenditure,
purchase or other expenditure of the Company which exceeds in
the aggregate with all other capital expenditures, purchases
or other expenditures during the fiscal year in which such
purchase or expenditure is approved or incurred, $250,000,
unless such capital expenditure, purchase or other
expenditure is identified in the annual or quarterly capital
operating budget of the Company previously approved by the
Board;
(v) the incurrence or assumption of any indebtedness for
borrowed money by, or the repayment (other than in accordance
with the express terms thereof) refinancing of any
indebtedness of, the Company or the granting of any mortgage,
lien or other encumbrance on any of the assets of the Company
or the giving of any guaranty by the Company;
(vi) the (i) entry of an order for relief or other
commencement of a voluntary case under the Bankruptcy code or
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, (ii) consent to the entry of an
order for relief in an involuntary case or the conversion of
an involuntary case into a voluntary case under any such law,
(iii) consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial
part of the property of the Company or (iv) assignment of the
assets of the Company for the benefit of creditors generally;
(vii) the issuance of any securities of the Company;
(viii) the appointment or termination of the officers or
senior managers of the Company and the establishment of (i)
benefit plans, salaries and bonuses for officers or directors
of the Company and (ii) the organizational structure and
staffing plan, including salary ranges for each position;
(ix) payment of any dividend, distribution, redemption
payment or other payment to the Holders of the Company or the
stockholders;
(x) approval of the annual and quarterly operating
budgets of the Company;
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(xi) any decision with respect to the principal place of
business of the Company or the fiscal year of the Company;
(xii) any amendment or restatement of the Certificate of
Incorporation or the bylaws of the Company;
(xiii) the entry by the Company into any transaction or
agreement with any Affiliate of the Company;
(xiv) the engagement or retention of outside legal
counsel by the Company; and
(xv) except as otherwise set forth in this Agreement,
such other matters or business as would properly or
customarily be decided by or submitted to the board of
directors of a corporation.
In addition, any action by the Company to materially amend,
modify or supplement any document, instrument, transaction or other matter
described above as a Major Decision shall require the approval of a majority of
the Board if the same as so amended, modified or supplemented would be
inconsistent with the terms previously approved with respect thereto by the
Board.
(c) Minority Rights. (i) prior to the Repurchase Date, unless
a Notes Trigger Event or a Preferred Stock Trigger Event has occurred and is
continuing, any decision to sell all or substantially all of the assets of the
Company shall require the unanimous consent of the Board and (ii) at all times
after the Repurchase Date, unless the TCW Funds have the right to designate the
Fifth Designee to the Board pursuant to Section 4(a), the following actions
shall require the unanimous consent of the Board:
(1) the sale, lease or other disposition of assets
of the Company, other than assets having a fair market
value, individually or in the aggregate with assets sold,
leased or otherwise disposed in a transaction or series
of related transactions, of less than $250,000;
(2) the (i) entry of an order for relief or other
commencement of a voluntary case under the Bankruptcy
code or any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or (ii) consent
to the entry of an order for relief in an involuntary
case or the conversion of an involuntary case into a
voluntary case under any such law or (iii) consent to the
appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial party
of the property of the Company or (iv) assignment of the
assets of the Company for the benefit of creditors
generally;
(3) any and all decisions or authorizations with
respect to the amount and type of insurance of the
Refinery;
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(4) any and all matters relating to the adoption or
modification of or compliance with the environmental
compliance policies of the Company;
(5) any amendment or restatement of the Certificate
of Incorporation or the bylaws of the Company; and
(6) the entry by the Company into any transaction
or agreement with any Affiliate of the Company.
(d) Compensation. Members of the Board shall not be entitled
to any compensation for their service on such Board (other than reimbursement
of reasonable out-of-pocket expenses incurred in connection with Board meetings
or director-related activities for services as a Board member) without the
written consent of Majority Preferred Holders; provided, however, that no
member of the Board who is an employee or officer of (i) the Company, (ii) any
Holder or (iii) any Affiliate of the Company or any Holder shall be entitled to
compensation (other than reimbursement of reasonable out-of-pocket expenses
incurred in connection with Board meetings or director-related activities for
services) as a Board member.
(e) D&O Insurance. The Company shall at all times maintain in
force for the benefit of all directors and officers of the Company coverage from
a reputable insurer selected by the Majority Preferred Holders with coverages
(including, without limitation, commercially available coverages against
environmental liabilities) which are not less than Twenty Five Million Dollars
($25,000,000) and deductibles which are approved by the Majority Preferred
Holders. If the Company shall ever fail to pay when due any premium or other
charge with respect to such insurance coverage, or otherwise fail to renew such
coverage, the Majority Preferred Holders or their Affiliates may pay such
premium or charge, or renew such coverage, and the Company shall promptly
reimburse such Majority Preferred Holders or their Affiliates
(f) Voting Agreement. All parties to this Agreement agree
that this Section 4 shall constitute a voting agreement within the meaning of
Section 218 of the Delaware General Corporation Law.
SECTION 5. CERTIFICATES.
(a) Restrictive Endorsements. Each certificate evidencing any
Securities shall bear a legend in substantially the following form:
"The securities evidenced by this certificate are
subject to a Stockholders Agreement dated as of
December __, 1998, copies of which are on file at
the principal office of the corporation and will be
furnished to the holder on request to the Secretary
of the corporation. Such Stockholders Agreement
provides, among other things, for certain
restrictions on voting, sale, transfer, pledge,
hypothecation or other disposition of the securities
evidenced by this certificate and that such
securities may be subject to purchase upon the
occurrence of certain events."
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In addition, unless counsel to the Company has advised that such legend is no
longer needed, each certificate evidencing the Securities shall bear a legend
in substantially the following form:
"The securities evidenced by this certificate have
not been registered pursuant to the Securities Act
of 1933, as amended (the "Act"), or any state
securities law, and such securities may not be sold,
transferred or otherwise disposed of unless the same
are registered and qualified in accordance with the
Act and any applicable state securities laws, or in
the opinion of counsel reasonably satisfactory to
the corporation such registration and qualification
are not required."
(b) Replacement Certificates. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any of its respective certificates evidencing any Securities, and
(in the case of loss, theft or destruction) of indemnity reasonably
satisfactory to it, upon surrender and cancellation of such certificate or
receipt of such indemnity, the Company will execute, register and deliver a new
certificate of like tenor in lieu of such lost, stolen, destroyed or mutilated
certificate.
SECTION 6. EQUITABLE RELIEF. The parties hereto agree and
declare that legal remedies may be inadequate to enforce the provisions of this
Agreement and that equitable relief, including specific performance and
injunctive relief, may be used to enforce such provisions.
SECTION 7. MISCELLANEOUS.
(a) Notices. All notices and other communications provided
for or permitted under this Agreement shall be made in writing by
hand-delivery, certified first-class mail, return receipt requested, next-day
air courier or facsimile, in the case of the case of the Company and TCR
Holding, as follows:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
copies to:
TransAmerican Refining Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
and
Gardere & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
or, if to the Initial Holders of the Preferred Shares, to the addresses listed
below their names on the signature pages hereto and, if to any other Person who
is the registered holder of any Securities, to the address for the purpose of
such holder as it appears in the stock ledger of the Company or at such other
address as such party may have furnished in writing to each other party hereto.
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Any notice shall be deemed to have been duly given when delivered by hand, if
personally delivered, and if sent by mail, two business days after being
deposited in the mail, postage prepaid.
(b) Amendment. This Agreement may be changed, modified or
amended by a writing signed by TCR Holding and the Majority Preferred Holders;
provided that no such change, modification or amendment shall be enforceable
against any party to this Agreement whose rights or obligations hereunder will
be materially and adversely affected thereby unless the same shall be in writing
and signed by such party.
(c) Waiver. No failure or delay on the part of the parties or
any of them in exercising any right, power or privilege hereunder, nor any
course of dealing between the parties or any of them shall operate as a waiver
of any such right, power or privilege nor shall any single or partial exercise
of any such right, power or privilege preclude the simultaneous or later
exercise of any other right, power or privilege. The rights and remedies herein
expressly provided are cumulative and are not exclusive of any rights or
remedies which the parties or any of them would otherwise have. No notice to or
demand on the Company shall entitle the Company to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the
rights of the other parties or any of them to take any other or further action
in any circumstances without notice or demand.
(d) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(e) Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware
applied to contracts to be made and to be performed therein without giving
effect to the considerations of conflicts of laws.
(f) Filing. A copy of this Agreement and of all amendments
hereto shall be filed at the principal office of the Company.
(g) Termination. This Agreement may be terminated at any time
by an instrument in writing signed by TCR Holding and the Majority Preferred
Holders.
(h) All Securities Subject to this Agreement.
(i) Any Securities now or hereafter held by any Person
shall be held by such Person subject to the transfer and
other restrictions of this Agreement and such Person shall be
deemed to be a "Holder" for all such purposes of this
Agreement;
(ii) A Holder who ceases to own any Securities as
provided for in this Agreement shall cease to be a Holder for
purposes of this Agreement; and
(iii) The provisions of this Agreement shall be deemed to
apply equally to any Security or other equity securities
distributed in respect of the Securities.
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(i) Benefit and Binding Effect. Except as otherwise provided
in this Agreement, no right under this Agreement shall be assignable and any
attempted assignment in violation of this provision shall be void; provided,
that the Preferred Holders may assign their respective rights under this
Agreement to any Person who (i) is, immediately following such assignment, in
compliance with all of the covenants and agreements applicable to the Preferred
Holders hereunder and (ii) assumes all applicable obligations of the Preferred
Holders under this Agreement. Subject to compliance with the terms of this
Agreement regarding Transfer of Securities, this Agreement shall be binding
upon and inure to the benefit of the parties and their executors,
administrators, personal representatives, heirs, successors and permitted
assigns. Except as set forth in this clause (i), this Agreement does not create
and shall not be construed as creating any rights enforceable by any Person not
a party hereto.
(j) 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 provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Further Assurances. Each Holder shall cause all Securities
that are entitled to vote and are registered in the name of such Holder to be
voted, and will otherwise take or cause to be taken all such other action as may
be necessary, to implement the provisions of this Agreement and shall not take
any action inconsistent herewith or therewith.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the day and year first above written.
TRANSCONTINENTAL REFINING CORPORATION,
a Delaware corporation
By:
----------------------------------------
▇▇ ▇▇▇▇▇▇▇
Vice President
TCR HOLDING CORPORATION, a Delaware
corporation
By:
----------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
THE PREFERRED HOLDERS:
TCW FUNDS: TCW LEVERAGED INCOME TRUST, L.P.
By: TCW ADVISORY (BERMUDA), LTD.,
as General Partner
By:
----------------------------------------
Name:
Title:
By: TCW INVESTMENT MANAGEMENT COMPANY,
as Investment Advisor
By:
----------------------------------------
Name:
Title:
At: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
Copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisory (Bermuda), Ltd.,
as General Partner
By:
----------------------------------------
Name:
Title:
By: TCW Investment Management Company,
as Investment Advisor
By:
----------------------------------------
Name:
Title:
TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
as Investment Advisor
By:
----------------------------------------
Name:
Title:
At: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
Copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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At: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Nick Tell
Copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Jefferies: JEFFERIES & COMPANY, INC
By:
----------------------------------------
[NAME]
Authorized Signatory
At: Jefferies & Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, ▇▇.
THE OTHER PREFERRED HOLDERS:
---------------------------- ---------------------------------------
---------------------------- ---------------------------------------
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