EXHIBIT (d)(7)
INVESTORS' AGREEMENT
This INVESTORS' AGREEMENT (this "Agreement") is made and
entered into as of January 30, 2003, by and among Inland Holdings, LLC, a
California limited liability company ("TCW"), Hampton Investments LLC, a
Delaware limited liability company ("Hampton") and SOLVation Inc., a Delaware
corporation ("SOLVation," and together with Hampton, the "Xxxxx Group").
W I T N E S S E T H
WHEREAS, simultaneously herewith, TCW and SOLVation have
entered into that certain Exchange Agreement (as defined herein) with Inland
Resources Inc., a Washington corporation ("Inland") and Inland Production
Company, Inc., a Texas corporation ("IPC");
WHEREAS, pursuant to the Exchange Agreement, TCW will exchange
its entire interest in the Exchanged Sub Debt (as defined in the Exchange
Agreement) for (A) a specified number of shares of Series F preferred stock of
Inland and (B) 22,053,000 shares of common stock of Inland (collectively, the
"New TCW Stock");
WHEREAS, pursuant to the Exchange Agreement, SOLVation will
exchange its entire interest in the Exchanged Junior Debt (as defined in the
Exchange Agreement) for a specified number of shares of Series F preferred stock
of Inland (the "New Xxxxx Stock");
WHEREAS, as of the date hereof, (i) TCW owns 297,000 shares of
Inland's common stock (the "Existing TCW Stock"; together with the New TCW
Stock, the "TCW Interest") and (ii) Hampton owns 2,318,000 shares of Inland's
common stock (the "Existing Xxxxx Stock"; together with the New Xxxxx Stock, the
"Xxxxx Group Interest");
WHEREAS, each of TCW and the Xxxxx Group desire to set forth
their agreement to contribute, respectively, the TCW Interest and the Xxxxx
Interest to Newco (as defined herein) and to cause Inland to merge into Newco;
and
WHEREAS, each of TCW and the Xxxxx Group desire to set forth
their rights and obligations as shareholders of Newco, the surviving corporation
in the Merger (as defined herein).
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 as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms have the
following meanings:
"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 the
Xxxxx Group: (a) Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxxx Xxxxx,
Xxxxxx X. Pasmas, Xxxx X. Xxxxx, (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) Xxxxx Xxxxxxxxx, 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.
"Amended Registration Rights Agreement" shall have the meaning
ascribed to such term in the Exchange Agreement.
"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 Newco, par value
$.001 per share.
"Drag-Along Notice" shall have the meaning ascribed to such
term in Section 5.
"Drag-Along Party" shall have the meaning ascribed to such
term in Section 5.
"Drag-Along Period" shall have the meaning ascribed to such
term in Section 5.
"Drag-Along Shares" shall have the meaning ascribed to such
term in Section 5.
"Drag-Along Transaction" shall have the meaning ascribed to
such term in Section 5.
"Exchange Agreement" shall mean that certain Exchange and
Stock Issuance Agreement dated as of the date hereof by and among Inland, IPC,
TCW and SOLVation.
"Holders" shall mean any Person holding any of the Common
Stock.
"Inland" means Inland Resources Inc., a Washington
corporation.
"Merger" shall have the meaning ascribed to such term in
Section 3.3.
"Newco" means Inland Resources Inc., a newly formed Delaware
corporation.
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"Newco Liquidity Event" means any sale, transfer or other
disposition by Newco of all or substantially all of its consolidated assets,
howsoever effected, including by way of an asset contribution, joint venture,
farmout agreement, merger or other business combination with or into an
uncontrolled entity involving any Subsidiary of Newco pursuant to which proceeds
of such transaction in the form of cash or readily marketable securities are
paid to or received by Newco and not directly to its stockholders or any
Subsidiary thereof.
"Newco Stock" shall have the meaning ascribed to such term in
Section 3.1.
"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.
"Xxxxx Party" shall have the meaning ascribed to such term in
Section 5.2.
"Subsidiary" shall have the meaning ascribed to such term in
the Exchange Agreement.
"Tag Transaction" shall have the meaning ascribed to such term
in Section 4.1.
"Tagalong Party" shall have the meaning ascribed to such term
in Section 4.1.
"Transfer" shall have the meaning ascribed to such term in
Section 3.4. 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 4.1.
"Transferee" shall have the meaning ascribed to such term in
Section 4.1.
SECTION 2. FORMATION OF NEWCO
2.1 Before the Closing (as such term is defined in the
Exchange Agreement), each of TCW, Hampton and SOLVation hereby agree to cause
Newco to be formed in the state of Delaware. The certificate of incorporation of
Newco shall be filed substantially in the form of Exhibit A attached hereto. The
bylaws and organizational minutes of Newco shall be adopted substantially in the
form of Exhibit B and Exhibit C, respectively, attached hereto. Immediately upon
being authorized to do so (and TCW and the Xxxxx Group shall take all action
required to effect such authorization, Newco shall adopt, ratify and become a
party hereto with the same effect as if it were an original signatory.
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SECTION 3. CONTRIBUTION AND OTHER AGREEMENTS
3.1 Each of TCW, Hampton and SOLVation hereby agree to
contribute and convey, immediately after the Closing (as such term is defined in
the Exchange Agreement), all of their respective capital stock of Inland to
Newco in exchange for (i) in the case of TCW, 92.5% of the common stock of Newco
(9,250 common shares) and (ii) in the case of The Xxxxx Group, 7.5% of the
common stock of Newco (allocated 375 common shares to Hampton and 375 common
shares to SOLVation) (collectively, the "Newco Stock").
3.2 Upon consummation of the transactions contemplated by
the Exchange Agreement, Newco will own 100% of the Series F preferred stock of
Inland and approximately 98.87% of the outstanding common stock of Inland. TCW
and the Xxxxx Group hereby agree to cause Newco to act to cause Inland to merge
into Newco in a short form merger under the laws of Washington and Delaware no
later than five (5) business days after the Closing (as such term is defined in
the Exchange Agreement) (the "Merger"), pursuant to the Plan of Merger and
Articles of Merger substantially in the form of Exhibits D and E, respectively,
attached hereto.
3.3 Each party hereto understands and agrees that Newco
will cause the legends set forth below to be placed upon any certificates or
other documents or instruments evidencing ownership of the Newco Stock:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF THAT CERTAIN INVESTORS' AGREEMENT DATED AS OF JANUARY
30, 2003 BY AND AMONG INLAND HOLDINGS, LLC, SOLVATION INC. AND HAMPTON
INVESTMENTS LLC.
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
SUCH ACT OR EXEMPT FROM SUCH REGISTRATION."
3.4 Except as provided herein and subject to applicable
securities laws, any restrictive legends on certificates evidencing the Newco
Stock and any other agreements governing or restricting transfer of the Newco
Stock, each of TCW and the Xxxxx Group 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 Newco
Stock, whether in whole or in part, to any Person without restriction other than
as set forth herein.
SECTION 4. TAGALONG RIGHTS.
4.1 If TCW or any Affiliate thereof ("Transferor")
transfers, other than in a public offering pursuant to a registration statement,
any shares of Common Stock of Newco held by such Transferor to any Person or
Persons other than to an Affiliate of TCW (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 of Newco held by TCW as of
the date of the Closing or the Merger, respectively (a "Tag Transaction"), then
the Xxxxx Group or any Affiliate of the Xxxxx Group (the "Tagalong Party") shall
have the right to sell to the Transferee,
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at the same price per share and otherwise substantially 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 of Newco then proposed to be sold
by the Transferor and a denominator equal to the total number of shares of
Common Stock of Newco owned by the Transferor as of the date of the Closing or
the Merger, respectively. 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 substantially 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 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 4.1). The 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 TCW; other securities acquired after the date hereof in any manner
shall not be subject to the tagalong rights provided in this Section 4.
4.2 The Transferor shall give written notice to the Xxxxx
Group, and to any Affiliate of the Xxxxx Group to whom the Xxxxx Group has
Transferred Common Stock (notice of which such Affiliate transferees has been
given to TCW 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
4.1, 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 4.1.
Failure to give such notice shall constitute an election not to exercise such
right and upon the closing of such Transfer the tagalong right terminates.
4.3 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 4 and such Affiliate shall thereupon be deemed to be a
party hereto and (ii) shall notify the Xxxxx Group of the identity and address
of the Affiliate transferee. The tag along rights set forth in this Section 4
shall not be applicable to transferees of TCW other than to Affiliates of TCW.
SECTION 5. DRAG-ALONG.
5.1 If the Transferor sells, other than in a public
offering pursuant to a registration statement or pursuant to Rule 144, shares of
Common Stock of Newco held by
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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 TCW and its Affiliates, the Transferor may, at its
sole option, cause each of the Xxxxx Group members (together with any party
deemed to be included in such definition pursuant to Section 5.2 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 of Newco 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.
5.2 If any member of the Xxxxx Group or any of its
Affiliates (a "Xxxxx Party") proposes to Transfer to any Affiliate thereof any
of the Common Stock of Newco held by such Xxxxx Party, then such Xxxxx Party, as
a condition to the Transfer, shall cause such Affiliate to agree to be bound by
this Section 5 and such Affiliate shall thereupon be deemed to be a party hereto
and shall notify TCW 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 5 shall not be
applicable to transferees of the Drag-Along Party other than to other Affiliates
of such Drag-Along Party.
5.3 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 5 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 6. COVENANTS AND RESTRICTIONS.
6.1 Prior to the Merger, Newco shall not, without the
prior unanimous approval of the Holders: (i) engage in any activities other than
holding the capital stock or other securities of Inland, (ii) incur any debt or
other similar liabilities, other than debt in the nature of franchise taxes and
similar amounts arising from the formation thereof and consummation of the
transactions contemplated herein, (iii) require additional capital contributions
or loans from the Holders, (iv) issue any equity securities other than the Newco
Stock issued to Holders pursuant to Section 3.2, (v) enter in any transactions
with any Holder or any Affiliate thereof other than those contemplated herein or
in the Exchange Agreement, or (vi) voluntarily file for bankruptcy protection or
fail to oppose an involuntary bankruptcy petition filed against it.
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6.2 For so long as any portion of the Senior Subordinated
Note in the aggregate principal amount of $5,000,000 in favor of SOLVation (the
"Senior Sub Note") is outstanding, TCW agrees that, unless such Senior Sub Note
is repaid in full at the closing of any such transaction, it shall not permit
Newco or any Subsidiary thereof to enter into any merger, sale of stock, sale of
substantially all of its assets or any similar transaction or any consulting or
employment arrangement with Xxxx Xxxxxx, Xxxx Xxxx, or any entity controlled by
or affiliated with (by way of a material management role) either of them without
the Xxxxx Group's prior written approval.
6.3 TCW agrees that, unless waived by the Xxxxx Group,
TCW shall use its reasonable commercial efforts to cause Newco, upon or promptly
after the consummation of a Newco Liquidity Event, either to be liquidated and
its assets distributed to its shareholders or to distribute to its shareholders
all net proceeds of such Newco Liquidity Event, or to enter into a transaction
with substantially the same economic effect as the foregoing.
6.4 After the Merger, Newco shall not enter into any
transaction with any Affiliate of any Holder (excluding any transaction between
Newco and any subsidiary of Newco) without the prior unanimous approval of the
Holders; provided, however, that this Section 6.4 shall not apply to any such
transaction if the preemptive rights set forth in Section 5 of the Amended
Registration Rights Agreement are applicable to such transaction.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
7.1 Each of Hampton and SOLVation hereby represents,
warrants and covenants to TCW that: (a) Hampton owns the Existing Xxxxx Stock
and immediately prior to its contribution thereof to Newco, SOLVation will own
the New Xxxxx Stock free and clear of any liens or security interests and owns
no other equity securities of Inland, (b) SOLVation is the beneficial holder
(and pursuant to the Exchange Agreement has the contractual right to become the
record holder) of the New Xxxxx Stock and (c) the Xxxxx Group has neither sold,
assigned, conveyed, transferred, mortgaged, pledged encumbered or otherwise
disposed of, in whole or in part, its securities constituting all or a portion
of the Xxxxx Stock, nor, as of the date hereof, has entered into any agreement
other than this Agreement to sell, assign, convey, transfer, mortgage, pledge,
encumber or otherwise dispose of, in whole or in part, such securities.
7.2 TCW hereby represents, warrants and covenants to each
of Hampton and SOLVation that: (a) TCW owns the Existing TCW Stock and
immediately prior to its contribution to Newco, TCW will own the New TCW Stock
free and clear of any liens or security interests and owns no other equity
securities of Inland, (b) TCW is the beneficial holder (and pursuant to the
Exchange Agreement has the contractual right to become the record holder) of the
New TCW Stock and (c) TCW has neither sold, assigned, conveyed, transferred,
mortgaged, pledged encumbered or otherwise disposed of, in whole or in part, its
securities constituting all or a portion of the TCW Stock, nor, as of the date
hereof, has entered into any agreement other than this Agreement to sell,
assign, convey, transfer, mortgage, pledge, encumber or otherwise dispose of, in
whole or in part, such securities.
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SECTION 8. REGISTRATION RIGHTS.
The parties hereby acknowledge that upon consummation of the
Merger, by operation of law Newco, shall have succeeded to the obligations of
Inland under, and shall be bound by, the Amended Registration Rights Agreement
as if it were the original party "Company" thereto in lieu of Inland.
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, that this Agreement shall terminate and not apply
when Common Stock is no longer held by any of the Xxxxx Group, TCW or their
respective Affiliates.
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
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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 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 Delaware.
9.9 Original Agreement; Entire Agreement. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Investors' Agreement as of the day and year first above written.
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/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
Managing Director
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
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/Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
Vice President
Address for Notices:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy To:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
HAMPTON INVESTMENTS, LLC,
a Delaware limited liability company
By: JWA Investments IV LLC,
its Managing Member
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
Vice President
Address for Notices:
Hampton Investments LLC
c/o Smith Management LLC
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx III
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SOLVATION, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address for Notices:
SOLVation, Inc.
c/o Smith Management LLC
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx III
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
INLAND RESOURCES INC.
The undersigned, for the purpose of organizing a corporation
under the General Corporation Law of the State of Delaware (hereinafter referred
to as the "GCL"), hereby certifies:
FIRST: The name of the corporation is Inland Resources Inc.
(hereinafter referred to as the "Corporation").
SECOND: The address of the Corporation's registered office in
the State of Delaware is The Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the GCL.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Twenty Thousand (20,000) shares of
common stock, par value $0.001 per share.
FIFTH: The directors shall have power to adopt, amend or
repeal Bylaws of the Corporation, except as may otherwise be provided in the
Bylaws of the Corporation.
SIXTH: Elections of directors need not be by written ballot,
except as may otherwise be provided in the Bylaws of the Corporation.
SEVENTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived any improper personal benefit. If
the GCL is amended after the date of the filing of this certificate to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the GCL, as so amended.
No repeal or modification of this Article SEVENTH shall apply to or have any
effect on the liability or alleged liability of any director of the corporation
for or with respect to any acts or omissions of such director occurring prior to
such repeal or modification.
EIGHTH: The name and mailing address of the incorporator is
Xxxxx X. Xxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
WITNESS my signature this ____ day of __________, 2003.
---------------------------------
Xxxxx X. Xxxxx, Sole Incorporator
2
EXHIBIT B
BYLAWS
OF
INLAND RESOURCES INC.
TABLE OF CONTENTS
Page
----
ARTICLE I OFFICE AND RECORDS................................................................ 1
Section 1.1 Delaware Office..................................................... 1
Section 1.2 Other Offices....................................................... 1
Section 1.3 Books and Records................................................... 1
ARTICLE II STOCKHOLDERS..................................................................... 1
Section 2.1 Annual Meeting...................................................... 1
Section 2.2 Special Meetings.................................................... 1
Section 2.3 Notice of Meetings.................................................. 2
Section 2.4 Quorum.............................................................. 2
Section 2.5 Voting.............................................................. 2
Section 2.6 Proxies............................................................. 3
Section 2.7 List of Stockholders................................................ 3
Section 2.8 Stockholder Action by Written Consent............................... 3
ARTICLE III DIRECTORS....................................................................... 4
Section 3.1 General Powers...................................................... 4
Section 3.2 Number of Directors................................................. 4
Section 3.3 Election and Term of Directors...................................... 4
Section 3.4 Vacancies and Newly Created Directorships........................... 4
Section 3.5 Resignation......................................................... 4
Section 3.6 Removal............................................................. 4
Section 3.7 Meetings............................................................ 5
Section 3.8 Quorum and Voting................................................... 5
Section 3.9 Written Consent of Directors in Lieu of a Meeting................... 5
Section 3.10 Compensation....................................................... 5
Section 3.11 Committees of the Board of Directors............................... 5
ARTICLE IV OFFICERS ........................................................................ 6
Section 4.1 Election and Term of Office......................................... 6
Section 4.2 Resignation and Removal............................................. 6
Section 4.3 Compensation and Bond............................................... 7
Section 4.4 Chairman of the Board............................................... 7
Section 4.5 Vice Chairman....................................................... 7
Section 4.6 Chief Executive Officer and President............................... 7
Section 4.7 Vice Presidents..................................................... 7
Section 4.8 Treasurer........................................................... 7
Section 4.9 Secretary........................................................... 8
Section 4.10 Assistant Treasurers............................................... 8
Section 4.11 Assistant Secretaries.............................................. 8
Section 4.12 Delegation of Duties............................................... 8
ARTICLE V INDEMNIFICATION AND INSURANCE..................................................... 8
Section 5.1 Right to Indemnification............................................ 8
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Section 5.2 Right to Advancement of Expenses.................................... 9
Section 5.3 Right of Indemnitee to Bring Suit................................... 9
Section 5.4 Non-Exclusivity of Rights........................................... 10
Section 5.5 Insurance........................................................... 10
Section 5.6 Indemnification of Employees and Agents of the Corporation.......... 10
Section 5.7 Contract Rights..................................................... 10
ARTICLE VI STOCK ........................................................................... 10
Section 6.1 Certificates........................................................ 10
Section 6.2 Transfers of Stock.................................................. 10
Section 6.3 Lost, Stolen or Destroyed Certificates.............................. 11
Section 6.4 Stockholder Record Date............................................. 11
ARTICLE VII SEAL ........................................................................... 12
Section 7.1 Seal................................................................ 12
ARTICLE VIII WAIVER OF NOTICE............................................................... 12
Section 8.1 Waiver of Notice.................................................... 12
ARTICLE IX CHECKS, NOTES, DRAFTS, ETC....................................................... 12
Section 9.1 Checks, Notes, Drafts, Etc.......................................... 12
ARTICLE X AMENDMENTS ....................................................................... 12
Section 10.1 Amendments......................................................... 12
- ii -
BYLAWS
OF
INLAND RESOURCES INC.
Certain provisions of these bylaws are subject to Sections 7.2
and 7.3 of that certain Exchange and Stock Issuance Agreement dated as of
January 30, 2003, by and among Inland Resources Inc., a Washington corporation,
Inland Holdings, LLC, Hampton Investments LLC and SOLVation Inc. (the "Exchange
Agreement") and Section 6 of the Investors' Agreement (as defined in the
Exchange Agreement). To the extent any provisions of these bylaws are
inconsistent with the provisions of Sections 7.2 and 7.3 of the Exchange
Agreement or Section 6 of the Investors' Agreement, the provisions of such
sections of the Exchange Agreement or Investors' Agreement shall govern.
ARTICLE I
Office and Records
Section 1.1 Delaware Office. The principal office of the
Corporation in the State of Delaware shall be located in the City of Wilmington,
County of New Castle, and the name and address of its registered agent is The
Corporation Trust Corporation, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
Section 1.2 Other Offices. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
Section 1.3 Books and Records. The books and records of the
Corporation may be kept at the Corporation's principal executive offices or at
such other locations inside or outside the State of Delaware as may from time to
time be designated by the Board of Directors.
ARTICLE II
Stockholders
Section 2.1 Annual Meeting. Except as otherwise provided in
Section 2.8 of these Bylaws, the annual meeting of stockholders of the
Corporation shall be held at such date, time and place within or without the
State of Delaware as may be fixed by the Board of Directors.
Section 2.2 Special Meetings. A special meeting of the holders
of stock of the Corporation entitled to vote on any business to be considered
at any such meeting may be called only by the Chairman of the Board, if any, or
the President, the Chief Financial Officer, any Managing Director, any Director
or any Vice President, and shall be called by the Chairman of the Board, if
any, or the President or the Secretary when directed to do so by resolution of
the Board of Directors or at the written request of directors representing a
majority of the whole
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Board of Directors. Any such request shall state the purpose or
purposes of the proposed meeting. The Board of Directors may designate the place
of meeting for any special meeting of stockholders, and if no such designation
is made, the place of meeting shall be the principal executive offices of the
Corporation.
Section 2.3 Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, unless notice is waived
as provided in Section 8.1 of these Bylaws, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called.
Unless otherwise provided by law, and except as to any
stockholder duly waiving notice, the written notice of any meeting shall be
given personally or by mail, not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in the mail,
postage prepaid, directed to the stockholder at his or her address as it appears
on the records of the Corporation.
When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If, however, the adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.4 Quorum. Except as otherwise provided by law or by
the Certificate of Incorporation or by these Bylaws, at any meeting of
stockholders the holders of a majority of the voting stock, either present or
represented by proxy, shall constitute a quorum for the transaction of any
business at such meeting, except that when specified business is to be voted on
by a class or series voting as a class, the holders of a majority of the shares
of such class or series shall constitute a quorum for the transaction of such
business. The chairman of the meeting or a majority of the voting stock so
represented may adjourn the meeting from time to time, whether or not there is
such a quorum (or in the case of specified business to be voted on as a class or
series, the chairman or a majority of the shares of such class or series so
represented may adjourn the meeting with respect to such specified business). No
notice of the time and place of adjourned meetings need be given except as
provided in the last paragraph of Section 2.3 of these Bylaws.
Section 2.5 Voting. Except as otherwise required by these
Bylaws, whenever directors are to be elected at a meeting, they shall be elected
by a plurality of the votes cast at the meeting by the holders of stock entitled
to vote. Whenever any corporate action, other than the election of directors, is
to be taken by vote of stockholders at a meeting, it shall, except as otherwise
required by law or by the Certificate of Incorporation or by these Bylaws, be
authorized by a majority of the votes cast with respect thereto at the meeting
(including abstentions) by the holders of stock entitled to vote thereon.
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Upon the demand of any stockholder entitled to vote, the vote
for directors or the vote on any other matter at a meeting shall be by written
ballot, but otherwise the method of voting and the manner in which votes are
counted shall be discretionary with the presiding officer at the meeting.
Section 2.6 Proxies. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for him
or her by proxy, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. Every proxy
shall be signed by the stockholder or by his duly authorized attorney. Such
proxy must be filed with the Secretary of the Corporation or his or her
representative at or before the time of the meeting.
Section 2.7 List of Stockholders. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
Section 2.8 Stockholder Action by Written Consent. Any action
required by the Delaware General Corporation Law (the "GCL") to be taken at any
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of the stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt written notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
Any such written consent may be given by one or any number of substantially
concurrent written instruments of substantially similar tenor signed by such
stockholders, in person or by attorney or proxy duly appointed in writing, and
filed with the Secretary or an Assistant Secretary of the Corporation. Any such
written consent shall be effective as of the effective date thereof as specified
therein, provided that such date is not more than sixty (60) days prior to the
date such written consent is filed as aforesaid, or, if no such date is so
specified, on the date such written consent is filed as aforesaid.
- 3 -
ARTICLE III
Directors
Section 3.1 General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these Bylaws required to be exercised or done
by the stockholders. All actions to be taken by the Board of Directors from time
to time will require the affirmative vote of a majority of the directors of the
Corporation then in office.
Section 3.2 Number of Directors. The Board of Directors shall
consist of no more than 7 and no fewer than 2 directors until changed as
provided for in this section. The number of directors may be changed from time
to time by vote at a meeting or by written consent of the holders of stock
entitled to vote on the election of directors, or by a resolution of the Board
of Directors passed by a majority of the whole Board of Directors, except that
no decrease shall shorten the term of any incumbent director unless such
director is specifically removed pursuant to Section 3.6 of these Bylaws at the
time of such decrease.
Section 3.3 Election and Term of Directors. Directors shall be
elected annually by election at the annual meeting of stockholders or by written
consent of the holders of stock entitled to vote thereon in lieu of such
meeting. If the annual election of directors is not held on the date designated
therefor, the directors shall cause such election to be held as soon thereafter
as convenient. Each director shall hold office from the time of his or her
election and qualification until his successor is elected and qualified or until
his or her earlier resignation, or removal.
Section 3.4 Vacancies and Newly Created Directorships. Each
director will hold his or her office as a director of the Corporation for such
term as is provided in the Corporation's Certificate of Incorporation and these
Bylaws until his or her death, resignation or removal from the Board of
Directors or until his or her successor has been duly elected and qualified.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by election at a meeting of
stockholders or by written consent of the holders of stock entitled to vote
thereon in lieu of a meeting. Except as otherwise provided by law, vacancies and
such newly created directorships may also be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director.
Section 3.5 Resignation. Any director may resign at any time
upon written notice to the Corporation. Any such resignation shall take effect
at the time specified therein or, if the time be not specified, upon receipt
thereof, and the acceptance of such resignation, unless required by the terms
thereof, shall not be necessary to make such resignation effective.
Section 3.6 Removal. Except as otherwise set forth in these
Bylaws, any or all of the directors may be removed at any time, with or without
cause, by vote at a meeting or by written consent of the holders of stock
entitled to vote on the election of directors.
- 4 -
Section 3.7 Meetings. Meetings of the Board of Directors,
regular or special, may be held at any place within or without the State of
Delaware. Members of the Board of Directors, or of any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors
or such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting. An annual meeting of the Board of Directors
shall be held at the same place and immediately following each annual meeting of
stockholders, and no further notice thereof need be given other than this Bylaw.
The Board of Directors may fix times and places for additional regular meetings
of the Board of Directors and no further notice of such meetings need be given.
A special meeting of the Board of Directors shall be held whenever called by the
Chairman of the Board or by any member of the Board of Directors, at such time
and place as shall be specified in the notice or waiver thereof. The person or
persons authorized to call special meeting of the Board of Directors may fix the
place and time of the meetings. Notice of any special meeting shall be given to
each director at his or her business or residence in writing or by facsimile,
telegram or by telephone communication. If mailed, such notice shall be deemed
adequately delivered when deposited in the United States mails so addressed,
with postage thereon prepaid, at least five (5) days before such meeting. If by
telegram, such notice shall be deemed adequately delivered when the telegram is
delivered to the telegraph company at least twenty-four hours before such
meeting. If by facsimile transmission, such notice shall be transmitted at least
twenty-four hours before such meeting. If by telephone, the notice shall be
given at least twelve hours prior to the time set for the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice of such meeting.
Section 3.8 Quorum and Voting. A whole number of directors
equal to at least a majority of the Board of Directors shall constitute a quorum
for the transaction of business at any meeting of the Board of Directors, but if
there be less than a quorum, a majority of the directors present may adjourn the
meeting from time to time, and no further notice thereof need be given other
than announcement at the meeting which shall be so adjourned. Except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws, the vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 3.9 Written Consent of Directors in Lieu of a Meeting.
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or of such committee.
Section 3.10 Compensation. Directors may receive compensation
for services to the Corporation in their capacities as directors or otherwise in
such manner and in such amounts as may be fixed from time to time by the Board
of Directors.
Section 3.11 Committees of the Board of Directors. The Board
of Directors may from time to time, by resolution passed by majority of the
Board of Directors, designate one or
- 5 -
more committees, each committee to consist of one or more directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. The resolution of the Board of Directors
may, in addition or alternatively, provide that in the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it, except as otherwise provided by law.
Unless the resolution of the Board of Directors expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such committee may adopt rules governing
the method of calling and time and place of holding its meetings. Unless
otherwise provided by the Board of Directors, a majority of any such committee
(or the member thereof, if only one) shall constitute a quorum for the
transaction of business, and the vote of a majority of the members of such
committee present at a meeting at which a quorum is present shall be the act of
such committee. Each such committee shall keep a record of its acts and
proceedings and shall report thereon to the Board of Directors whenever
requested so to do. Any or all members of any such committee may be removed,
with or without cause, by resolution of the Board of Directors, passed by a
majority of the Board of Directors.
ARTICLE IV
Officers
Section 4.1 Election and Term of Office. The elected officers
of the Corporation may include a President, a Chief Executive Officer, a
Secretary and a Treasurer, and may also include one or more Vice Presidents, one
or more Assistant Secretaries and one or more Assistant Treasurers. All such
officers shall be appointed and approved by a majority of the Board of Directors
or by a duly authorized committee thereof, and shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article IV, together with such other powers and duties as
from time to time may be conferred by the Board of Directors or any committee
thereof. The Chairman of the Board shall be chosen from among the directors by a
majority of the Board of Directors. Any number of such offices may be held by
the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity. The Board of Directors may appoint, and
may delegate power to appoint, such other officers, agents and employees as it
may deem necessary or proper, who shall hold their offices or positions for such
terms, have such authority and perform such duties as may from time to time be
determined by or pursuant to authorization of the Board of Directors.
Section 4.2 Resignation and Removal. Any officer may resign at
any time upon written notice to the Corporation. Any elected officer, agent or
employee may be removed by a majority of the members of the Board of Directors,
or by a duly authorized committee thereof, with or without cause at any time.
The Board of Directors or such committee thereof may
- 6 -
delegate such power of removal as to officers, agents and employees not elected
by the Board of Directors or such committee. Such removal shall be without
prejudice to a person's contract rights, if any, but the appointment of any
person as an officer, agent or employee of the Corporation shall not of itself
create contract rights.
Section 4.3 Compensation and Bond. The compensation of the
officers of the Corporation shall be fixed by the Board of Directors, but this
power may be delegated to any officer in respect of other officers under his or
her control. The Corporation may secure the fidelity of any or all of its
officers, agents or employees by bond or otherwise.
Section 4.4 Chairman of the Board. The Chairman of the Board,
if any, shall preside at all meetings of stockholders and of the Board of
Directors and shall have such other powers and duties as may be delegated to him
or her by the Board of Directors.
Section 4.5 Vice Chairman The Vice Chairman, if any, shall
have powers and duties as may be delegated to him or her by the Board of
Directors.
Section 4.6 Chief Executive Officer and President. In the
absence of the Chairman of the Board (or if there be none), the Chief Executive
Officer shall preside at all meetings of stockholders and of the Board of
Directors. The Chief Executive Officer and President shall have general charge
of the Corporation's business and general supervision of its policies and
affairs.
The Chief Executive Officer and President may employ and
discharge employees and agents of the Company except such as shall be appointed
by the Board of Directors, and he or she may delegate these powers. The Chief
Executive Officer may vote the stock or other securities of any other domestic
or foreign corporation of any type or kind which may at any time be owned by the
Corporation, may execute any stockholders' or other consents in respect thereof
and may in his or her discretion delegate such powers by executing proxies, or
otherwise, on behalf of the Corporation. The Board of Directors by resolution
from time to time may confer like powers upon any other person or persons. In
the absence or inability to act of the Chief Executive Officer, unless the Board
of Directors shall otherwise provide, the President (if such office be occupied
and not by the same person serving as the Chief Executive Officer) or the Vice
President shall perform all the duties and may exercise any of the powers of the
Chief Executive Officer.
Section 4.7 Vice Presidents. Each Vice President shall have
such powers and perform such duties as the Board of Directors, the Chairman of
the Board or the President may from time to time prescribe. In the absence or
inability to act of the President, unless the Board of Directors shall otherwise
provide, the Vice President who has served in that capacity for the longest time
and who shall be present and able to act, shall perform all the duties and may
exercise any of the powers of the President.
Section 4.8 Treasurer. The Treasurer shall have charge of all
funds and securities of the Corporation, shall endorse the same for deposit or
collection when necessary and deposit the same to the credit of the Corporation
in such banks or depositaries as the Board of Directors may authorize. He or she
may endorse all commercial documents requiring
- 7 -
endorsements for or on behalf of the Corporation and may sign all receipts and
vouchers for payments made to the Corporation. He or she shall have all such
further powers and duties as generally are incident to the position of Treasurer
or as may be assigned to him or her by the Chairman of the Board, the President
or the Board of Directors.
Section 4.9 Secretary. The Secretary shall record all the
proceedings of the meetings of the stockholders and directors in a book to be
kept for that purpose and shall also record therein all action taken by written
consent of stockholders or directors in lieu of a meeting. He or she shall
attend to the giving and serving of all notices of the Corporation. He or she
shall have custody of the seal of the Corporation and shall attest the same by
his or her signature whenever required. He or she shall have charge of the stock
ledger and such other books and papers as the Board of Directors may direct, but
he or she may delegate responsibility for maintaining the stock ledger to any
transfer agent appointed by the Board of Directors. He or she shall have all
such further powers and duties as generally are incident to the position of
Secretary or as may be assigned to him or her by the President or the Board of
Directors.
Section 4.10 Assistant Treasurers. In the absence or inability
to act of the Treasurer, any Assistant Treasurer may perform all the duties and
exercise all the powers of the Treasurer. An Assistant Treasurer shall also
perform such other duties as the Treasurer or the Board of Directors may assign
to him or her.
Section 4.11 Assistant Secretaries. In the absence or
inability to act of the Secretary, any Assistant Secretary may perform all the
duties and exercise all the powers of the Secretary. An Assistant Secretary
shall also perform such other duties as the Secretary or the Board of Directors
may assign to him or her.
Section 4.12 Delegation of Duties. In case of the absence of
any officer of the Corporation, or for any other reason that the Board of
Directors may deem sufficient, the Board of Directors may confer for the time
being the powers or duties, or any of them, of such officer upon any other
officer or upon any director.
ARTICLE V
Indemnification and Insurance
Section 5.1 Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or an officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of any other corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to any employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the GCL, as the same exists
or may hereafter be amended (but, in the case
- 8 -
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including, without limitation, attorneys' fees, judgments,
fines, excise taxes or penalties under the Employee Retirement Income Security
Act of 1974, as amended, and amounts paid or to be paid in settlement)
reasonably incurred by such indemnitee in connection therewith; provided,
however, that except as provided in Section 5.3 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such indemnitee seeking indemnification in connection with a proceeding (or
part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors.
Section 5.2 Right to Advancement of Expenses. The right to
indemnification conferred in Section 5.1 shall include the right to be paid by
the Corporation the expenses (including attorneys' fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the GCL requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 5.2 or otherwise.
Section 5.3 Right of Indemnitee to Bring Suit. If a claim
under Section 5.1 or Section 5.2 is not paid in full by the Corporation within
thirty (30) days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right of an advancement of expenses) it
shall be a defense that, and (ii) in any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for indemnification set
forth in the GCL. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the GCL, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel
or stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement
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of expenses pursuant to the terms of an undertaking, the burden of proving that
the indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article V or otherwise shall be on the Corporation.
Section 5.4 Non-Exclusivity of Rights. The right to
indemnification and the advancement of expenses conferred in this Article V
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
provision of these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5.5 Insurance. The Corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the GCL.
Section 5.6 Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to the
advancement of expenses, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article V with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
Section 5.7 Contract Rights. The rights to indemnification and
to the advancement of expenses conferred in Section 5.1 and Section 5.2 shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
ARTICLE VI
Stock
Section 6.1 Certificates. Certificates for stock of the
Corporation shall be in such form as shall be approved by the Board of Directors
and shall be signed in the name of the Corporation by the Chairman of the Board,
the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary. Such certificates may be
sealed with the seal of the Corporation or a facsimile thereof. Any of or all
the signatures on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 6.2 Transfers of Stock. Transfers of stock shall be
made only upon the books of the Corporation by the holder, in person or by duly
authorized attorney, and on the surrender of the certificate or certificates for
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require. The
Board
- 10 -
of Directors shall have the power to make all such rules and regulations, not
inconsistent with the Certificate of Incorporation and these Bylaws and the GCL,
as the Board of Directors may deem appropriate concerning the issue, transfer
and registration of certificates for stock of the Corporation. The Board of
Directors may appoint one or more transfer agents or registrars of transfers, or
both, and may require all stock certificates to bear the signature of either or
both.
Section 6.3 Lost, Stolen or Destroyed Certificates. The
Corporation may issue a new stock certificate in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or destroyed
certificate or his or her legal representative to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. The Board of Directors may require such
owner to satisfy other reasonable requirements as it deems appropriate under the
circumstances.
Section 6.4 Stockholder Record Date. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which shall not be more than sixty nor less than ten (10) days before the date
of such meeting, nor more than sixty (60) days prior to any other action.
If no record date is fixed by the Board of Directors, (l) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the date on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held, and (2) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to notice of, and to vote at, such meeting
and any adjournment thereof, or to receive payment of such dividend or other
distribution, or to exercise such rights in respect of any such change,
conversion or exchange of stock, or to participate in such action, as the case
may be, notwithstanding any transfer of any stock on the books of the
Corporation after any record date so fixed.
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ARTICLE VII
Seal
Section 7.1 Seal. The seal of the Corporation shall be
circular in form and shall bear, in addition to any other emblem or device
approved by the Board of Directors, the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
ARTICLE VIII
Waiver of Notice
Section 8.1 Waiver of Notice. Whenever notice is required to
be given to any stockholder or director of the Corporation under any provision
of the GCL or the Certificate of Incorporation or these Bylaws, a written waiver
thereof, signed by the person or persons entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of such
notice. In the case of a stockholder, such waiver of notice may be signed by
such stockholder's attorney or proxy duly appointed in writing. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors or members of a committee of directors need be specified in any
written waiver of notice.
ARTICLE IX
Checks, Notes, Drafts, Etc.
Section 9.1 Checks, Notes, Drafts, Etc. Checks, notes, drafts,
acceptances, bills of exchange and other orders or obligations for the payment
of money shall be signed by such officer or officers or person or persons as the
Board of Directors or a duly authorized committee thereof may from time to time
designate.
ARTICLE X
Amendments
Section 10.1 Amendments. These Bylaws may be amended, added
to, rescinded or repealed at any meeting of the Board of Directors or of the
stockholders; provided, however, that, in the case of amendments by
stockholders, notwithstanding any provision of law which might otherwise permit
a lesser vote or no vote, the affirmative vote of the holders of a majority in
interest of the then outstanding shares of voting stock, either present or
represented by proxy,
- 12 -
voting together as a single class, shall be required to alter, amend or repeal
any provision of these Bylaws.
-13-
EXHIBIT C
S T A T E M E N T
OF
SOLE INCORPORATOR
OF
INLAND RESOURCES INC.
The undersigned, being the Sole Incorporator of Inland
Resources Inc. (the "Corporation"), a corporation formed under the Delaware
General Corporation Law by the filing of its Certificate of Incorporation with
the Secretary of State on ____________, 2003, hereby takes the following action:
1. The ByLaws annexed hereto are adopted as the By-Laws
of the Corporation.
2. Xxxx XxxXxxxx, Xxxx X. Xxxxxxxxxx and Xxxxxx X.
Xxxxxx are elected as the initial directors of the Corporation, to hold
office until the first annual meeting of stockholders and until their
successors shall have been elected and qualified.
3. I hereby resign as the Sole Incorporator of the
Corporation as of the First Meeting of the Board of Directors of the
Corporation or as of the date of the Written Consent In Lieu of First
Meeting of the Board of Directors of the Corporation.
WITNESS the signature of the undersigned to this Action by
Sole Incorporator on ___________ ___, 2003.
-------------------------------
Xxxxx Xxxxx
Sole Incorporator
EXHIBIT D
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated
as of ____________, 2003, and entered into by and between Inland Resources Inc.,
a Washington corporation ("Inland-Washington") and Inland Resources Inc. a
Delaware corporation ("Inland-Delaware").
RECITALS
1. Inland-Washington is a Washington corporation. The
date of filing of Inland-Washington's original Articles of Incorporation is
August 12, 1985, as restated and amended from time to time (the "Articles").
2. Inland-Delaware is a Delaware corporation. The date
of filing of Inland-Delaware's Certificate of Incorporation is _________, 2003
(as amended from time to time, the "Certificate of Incorporation").
3. At the time of the consummation of the Merger (as
defined below), Inland-Delaware will own _____________ shares of Common Stock of
Inland-Washington and _____________ shares of Series F Preferred Stock of
Inland-Washington. Inland-Delaware owns over ninety percent of the outstanding
shares of each class of stock of Inland-Washington.
4. Inland-Delaware has determined that it is advisable
and in its best interests to merge Inland-Washington with and into
Inland-Delaware in a short form merger (the "Merger").
TERMS AND PROVISIONS OF MERGER
In consideration of the foregoing Recitals and of the
following terms and provisions, and subject to the following conditions, it is
agreed:
1. MERGER. The effective time of the Merger (the "Effective
Time") shall be a date to be determined by Inland-Delaware, which date shall be
not more than five (5) business days following the Closing (as such term is
defined in the Exchange Agreement by and between Inland-Washington, Inland
Production Company, Inland Holdings, LLC and SOLVation, Inc.) and shall be set
forth in the Articles of Merger. As of the Effective Time, Inland-Washington
shall be merged with and into Inland-Delaware. Following the Effective Time,
Inland-Delaware shall be the surviving entity of the Merger (hereinafter
sometimes referred to as the "Surviving Entity"), and the separate
organizational existence of Inland-Washington shall cease.
2. GOVERNING DOCUMENTS. The Certificate of Incorporation shall
govern the Surviving Entity without further change or amendment until thereafter
amended in accordance with the provisions thereof and applicable law.
3. TAX. The transactions effected pursuant to this Agreement are
intended to be a tax free reorganization within the meaning of Internal Revenue
Code of 1986 ("Code") section
368(a) and this Agreement constitutes a plan of reorganization within the
meaning of Code section 354.
4. NAME. The name of the Surviving Entity shall be Inland
Resources Inc.
5. SUCCESSION. At the Effective Time, the Surviving Entity shall
acquire and possess all the rights, privileges, powers and franchises of a
public or private nature and be subject to all the restrictions, disabilities
and duties of Inland-Washington; and all property, real, personal and mixed, and
all debts due to Inland-Washington on whatever account, including all other
things and causes of action, shall be vested in the Surviving Entity; and all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of the Surviving Entity
as they were of Inland-Washington, and the title to any real property vested by
deed or otherwise shall not revert or be in any way impaired by reason of the
Merger; but all rights of creditors and liens upon any property of
Inland-Washington shall be preserved unimpaired, and all debts, liabilities and
duties of Inland-Washington shall thenceforth attach to the Surviving Entity and
may be enforced against the Surviving Entity to the same extent as if such
debts, liabilities and duties had been incurred or contracted by the Surviving
Entity; provided, however, that such liens upon property of Inland-Washington
shall be limited to the property affected thereby immediately prior to the
Merger.
6. FURTHER ASSURANCES. From time to time, as and when required or
requested by the Surviving Entity or by its successors and assigns, there shall
be executed and delivered on behalf of Inland-Washington such deeds, assignments
and other instruments, and there shall be taken or caused to be taken by it all
such further and other action, as shall be appropriate or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Entity the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Inland-Washington and otherwise
to carry out the purposes of this Agreement, and the authorized officers of the
Surviving Entity are fully authorized in the name and on behalf of
Inland-Washington or otherwise, to take any and all such action and to execute
and deliver any and all such deeds, assignments and other instruments.
7. CONVERSION OF CAPITAL STOCK. At the Effective Time, each
issued and outstanding common share of Inland-Washington (other than any shares
held by Inland-Delaware) shall be automatically converted into the right to
receive $1.00 in cash per share (the "Merger Price"). At the Effective Time, all
other previously issued and outstanding shares of common or preferred stock of
Inland-Washington that were issued and outstanding immediately prior to the
Effective Time shall be automatically cancelled.
8. OPTIONS. At the Effective Time, all outstanding and
unexercised portions of all options to purchase shares of Inland-Washington
shall be automatically cancelled.
9. DISSENTING SHARES.
(a) Notwithstanding any provision of this Agreement to
the contrary, any common shares of Inland-Washington held by a holder who is
entitled to and has demanded and perfected his right as a dissenting shareholder
for appraisal of such shares in accordance with the Washington Business
Corporation Act (the "Act") and who, as of the Effective Time, has not
- 2 -
effectively withdrawn or lost such right as a dissenting shareholder to
appraisal shall not be converted into or represent a right to receive the Merger
Price per share, but shall only be entitled to such rights as are granted by the
Act.
(b) Notwithstanding the provisions of Section 9(a), if
any holder of common shares of Inland-Washington who is entitled to and demands
as a dissenting shareholder appraisal of such shares under the Act shall
effectively withdraw or lose (through failure to perfect or otherwise) his right
to appraisal, then, as of the Effective Time, such holder's common shares shall
be converted into a right to receive only the Merger Price per share.
(c) Inland-Washington shall give Inland-Delaware (i)
prompt written notice of any written demands by dissenting shareholders for
appraisal of common shares, withdrawals of such demands and any other
instruments pursuant to the Act received by Inland-Washington and (ii) the
opportunity to participate in all negotiations and proceedings with respect to
demands by dissenting shareholders for appraisal under the Act. Prior to the
Effective Time, Inland-Washington shall not, except with the prior written
consent of Inland-Delaware, voluntarily make any payment with respect to any
demands by dissenting shareholders for appraisal of common shares or offer to
settle or settle any such demands.
10. EXCHANGE OF CERTIFICATES.
(a) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, the Surviving Entity shall mail to each
holder of record of a certificate or certificates which immediately prior to the
Effective Time represented outstanding common shares of Inland-Washington (the
"Certificates") whose shares are converted pursuant to Section 7 into the right
to receive the Merger Price (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the Surviving Entity and
shall be in such form and have such other provisions as the Surviving Entity may
reasonably specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for the Merger Price. Upon surrender of a
Certificate for cancellation to the Surviving Entity, together with such letter
of transmittal duly executed and completed in accordance with its terms, the
holder of such Certificate shall be entitled to receive in exchange therefor a
check representing the Merger Price per common share of Inland-Washington
represented thereby, which such holder has the right to receive pursuant to the
provisions of Section 7, and the Certificate so surrendered shall forthwith be
canceled. In no event shall the holder of any Certificate be entitled to receive
interest on any funds to be received in the Merger. In the event of a transfer
of ownership of common shares of Inland-Washington which is not registered in
the transfer records of Inland-Washington, the Merger Price may be issued to a
transferee if the Certificate representing such common shares of
Inland-Washington is presented to the Surviving Entity accompanied by all
documents required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 10, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the Merger Price per common share represented thereby as contemplated
by Section 7 and this Section 10.
- 3 -
(b) No Further Ownership Rights in Common Shares of
Inland-Washington. All cash paid upon the surrender for exchange of Certificates
in accordance with the terms hereof shall be deemed to have been paid in full
satisfaction of all rights pertaining to the common shares of Inland-Washington
represented thereby. From and after the Effective Time, the stock transfer books
of Inland-Washington shall be closed and there shall be no further registration
of transfers on the stock transfer books of the Surviving Entity of the shares
of common shares of Inland-Washington which were outstanding immediately prior
to the Effective Time. If, after the Effective Time, Certificates are presented
to the Surviving Entity for any reason, they shall be canceled and exchanged as
provided in this Section 10.
(c) Withholding Rights. The Surviving Entity shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of common shares of Inland-Washington
such amounts as the Surviving Entity is required to deduct and withhold with
respect to the making of such payment under the Code, or any provision of state,
local or foreign tax law. To the extent that amounts are so withheld by the
Surviving Entity, such withheld amounts shall be treated for all purposes of
this Agreement as having been paid to the holder of the common shares of
Inland-Washington in respect of which such deduction and withholding was made by
the Surviving Entity.
11. EMPLOYEE BENEFIT PLANS. As of the Effective Time, the
Surviving Entity shall assume all obligations of Inland-Washington under any and
all employee benefit plans in effect as of the Effective Time or with respect to
which employee rights or accrued benefits are outstanding as of the Effective
Time, excluding any incentive stock option plans.
12. ACCOUNTING MATTERS. Inland-Delaware agrees that upon the
Effective Time, the assets, liabilities, reserves and accounts of
Inland-Washington shall be taken up or continued on the books of Inland-Delaware
in the amounts at which such assets, liabilities, reserves and accounts shall
have been carried on the books of Inland-Washington immediately prior to the
Effective Time, subject to such adjustments as may be appropriate to give effect
to the Merger.
13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington applicable to
contracts entered into and to be performed wholly within the State of
Washington.
14. AMENDMENT. Subject to applicable law, this Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein.
15. DEFERRAL OR ABANDONMENT. At any time prior to the Effective
Time, this Agreement may be terminated and the Merger may be abandoned or the
time of consummation of the Merger may be deferred for a reasonable time by
Inland-Delaware if circumstances arise which, in the opinion of the Board of
Directors of Inland-Delaware, make the Merger inadvisable or such deferral of
the time of consummation advisable.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which when taken alone shall constitute an original
instrument and when taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of this
- 4 -
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
- 5 -
IN WITNESS WHEREOF, Inland-Washington and Inland-Delaware have
caused this Agreement to be signed by their respective duly authorized officers
and delivered this ___ day of ________________, 2003.
INLAND RESOURCES INC.,
a Delaware corporation
By:
------------------------------------
Xxxx XxxXxxxx
Chief Executive Officer
INLAND RESOURCES INC.,
a Washington corporation
By:
------------------------------------
Xxxx XxxXxxxx
Chief Executive Officer
-6-
EXHIBIT E
ARTICLES OF MERGER
OF
INLAND RESOURCES INC., a Washington corporation
with and into
INLAND RESOURCES INC., a Delaware corporation
Pursuant to Section 23B.11.050 of the Washington Business Corporation
Act, the undersigned surviving corporation submits the following Articles of
Merger for filing and certifies that:
1. The name and jurisdiction of formation or organization of each of the
corporations which are to merge are:
Name Jurisdiction
------ ------------
Inland Resources Inc. ("Inland-Washington") Washington
Inland Resources Inc. ("Inland-Delaware") Delaware
2. Inland-Delaware owns over ninety percent of the outstanding shares of
each class of shares of Inland-Washington.
3. An Agreement and Plan of Merger has been approved and adopted by the
board of directors of Inland-Delaware, pursuant to which Inland-Delaware will
merge Inland-Washington into itself and assume all its obligations in a
statutory short form merger in accordance with Section 23B.11.040 of the
Washington Business Corporation Act.
4. The name of the surviving corporation is: Inland Resources Inc., a
Delaware corporation.
5. Pursuant to Section 23B.11.040 of the Washington Business Corporation
Act, shareholder approval for this merger is not required.
6. Each issued and outstanding common share of Inland-Washington (other
than any shares held by Inland-Delaware or any a holder entitled to dissenters'
rights under the Washington Business Corporation Act(who has demanded and
perfected such rights)) shall be automatically converted into the right to
receive $1.00 in cash per share. At the Effective Time, all other previously
issued and outstanding shares of common or preferred stock of Inland-Washington
that were issued and outstanding immediately prior to the Effective Time shall
be automatically cancelled.
7. At the Effective Time, all outstanding and unexercised portions of all
options to purchase shares of Inland-Washington shall be automatically
cancelled.
8. The Effective Time of the Merger shall be _________, 2003.
EXHIBIT E
9. The address of the registered office of Inland-Delaware in the State of
Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
10. A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any shareholder of any
business entity which is to merge.
IN WITNESS WHEREOF, these Articles of Merger have been duly executed as
of the ___ day of _______________, 2003, and are being filed in accordance with
Section 23B.11.050 of the Washington Business Corporation Act by an authorized
person of the surviving corporation in the merger.
INLAND RESOURCES INC.,
a Delaware corporation
By:
------------------------------------
Xxxx XxxXxxxx
Chief Executive Officer
