STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT is made as of November 3, 1999, by and
among United Petroleum Corporation, a Delaware corporation (the "Corporation"),
Infinity Investors Limited, a Nevis, West Indies corporation, Fairway Capital
Limited, a Nevis, West Indies corporation, Seacrest Capital Limited, a Nevis,
West Indies corporation (collectively, the "Investor") and Joe Bared and Miriam
Bared (collectively, "Bared"). The Investor and Bared are sometimes collectively
referred to as the "Stockholders" and individually as a "Stockholder.")
Capitalized terms used herein are defined in Section 12 hereof.
The Corporation and the Stockholders desire to enter into this
Agreement for the purposes, among others, of (i) assuring continuity in the
management and ownership of the Corporation, (ii) limiting the manner and terms
by which the Stockholders' stock may be transferred, and (iii) providing the
Stockholders with certain registration rights.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Restrictions on Transfer of Shareholder Shares. No Stockholder shall
sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of
(collectively, a "Transfer") any interest in any Stockholder Shares for a period
of two (2) years from the date hereof (the "Termination Date").
2. Stockholder Preemptive Rights. Prior to the Termination Date, and
for so long as any Stockholder owns any Stockholder Shares, each time the
Corporation proposes to sell shares of its capital stock or options, warrants or
other rights to buy capital stock for cash (except any capital stock issued
pursuant to a stock option or warrant plan of the Corporation which does not
exceed ten percent (10%) of the issued and outstanding capital stock of the
Corporation at the time the warrant or option plan is adopted by the
Corporation), the Corporation shall also make an offering of such shares to the
Stockholders in accordance with the following provisions:
(a) The Corporation shall deliver a notice to each Stockholder
stating the number of shares to be offered and the price and the terms on which
it proposes to offer such shares. Such notice shall be sent to the addresses set
forth in the records of the Corporation.
(b) Within 15 days after delivery of the notice, each
Stockholder may elect to purchase, at the price and on the terms specified in
the notice, up to its Pro Rata Portion of such shares by delivering written
notice of such election to the Corporation within such 15 calendar days.
(c) Any shares referred to in the notice that are not elected
to be purchased as provided in subsection (b) above may, during the 180-day
period thereafter, be offered by the Corporation to any other person or persons
at a price not less than, and on terms no more favorable to the offeree than,
those specified in the notice.
3. Board of Directors.
(a) From and after the date hereof and until the Termination
Date, each Stockholder shall vote all of his Stockholder Shares and any other
voting securities of the Corporation over which such Stockholder has voting
control and shall take all other necessary or desirable actions within his
control (whether in his capacity as a stockholder, director, member of a Board
of Directors committee or officer of the Corporation or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Corporation shall take all necessary and desirable actions
within its control (including, without limitation, calling special board and
stockholder meetings), so that:
(i) the number of directors on the Board shall be five (5)
directors;
(ii) the following persons shall be elected to the Board:
(A) Two (2) representatives designated by the Investor
(the "Investor Directors");
(B) Two (2) representatives designated by Bared (the
"Bared Directors"); and
(C) L. Grant Peeples (the "Independent Director").
(iii) the removal from the Board (with or without cause) of
any representative designated hereunder by the Investor or Bared
shall be at only the Investor's, or Bared's written request,
respectively;
(iv) in the event that any representative designated
hereunder by the Investor or Bared for any reason ceases to serve
as a member of the Board during his term of office, the resulting
vacancy on the Board shall be filed by a representative
designated by the Investor or Bared, respectively, as provided
hereunder; provided that any representative removed for cause
shall not be designated again as a member of the Board; and
(v) Expansion of the Board and election of its additional
members will initially be subject to the mutual agreement of the
Investor Directors and Bared Directors and whenever they do not
agree on such a matter, may be submitted to the vote of all
stockholders of the Corporation at a duly called meeting.
(vi) Each member of the Board shall abstain acting in the
event of a direct or indirect financial interest (excluding
matters that relate to Farm Stores Grocery, Inc., so long as UPET
has a financial interest in it).
(b) The Board shall not appoint any committee with the
authority to act on behalf of the Board without the consent of the Investor
Directors and the Bared Investors.
(c) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this Section 3, the election of a person
to such directorship shall be accomplished in accordance with the Corporation's
bylaws and applicable law.
4. Piggyback Registrations.
(a) Right to Piggyback. Subject to Section 1 hereof, whenever
the Corporation proposes to register any of its Common Stock under the
Securities Act (other than the initial public offering, pursuant to a
transaction described under Rule 145 of the Securities Act, a transaction
registering securities convertible into Common Stock or pursuant to Form S-8 or
its successor forms) and the registration form to be used may be used for the
registration of the Stockholder Shares of the Stockholders (a "Piggyback
Registration"), the Corporation shall give prompt written notice to the
Stockholders of its intention to effect such a registration and will include in
such registration the Stockholder Shares of the Stockholders with respect to
which the Corporation has received written requests for inclusion therein within
15 days after the receipt of the Corporation's notice.
(b) Right to Shelf Registration. Subject to Section 11 hereof,
in addition to the Piggyback Registration provided pursuant to paragraph 4(a),
the Stockholders shall be entitled to request an unlimited number of Form S-3
resale registrations (a "Short Form Registration") in which the Corporation will
pay all Registration Expenses; provided that the Corporation and the securities
meet the eligibility requirements for such form and provided further that the
Short Form Registration shall only be effective for 180 days and shall be
subject to no sale periods upon notice to the Stockholders participating therein
if in the reasonable judgment of the Corporation such Short Form Registration
conflicts with the Corporation's business plans or another existing or proposed
registration statement. The Corporation shall use its best efforts to make
Short-Form Registrations available for the resale of Stockholder Shares.
(c) Expenses. The Registration Expenses of the Stockholders
shall be paid by the Corporation in all Piggyback Registrations and Short-Form
Registrations.
(d) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Corporation, and the managing underwriters advise the Corporation in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Corporation shall
include in such registration (i) first, the securities the Corporation proposes
to sell, (ii) second, the Stockholder Shares of the Investor and Bared requested
to be included in such registration (on a pro rata basis), together with any
securities underlying any warrants issued to the lenders or underwriters of the
Corporation on a pro rata basis, (iii) third, other securities requested by
other persons to be included in such registration.
(e) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Corporation's securities, and the managing underwriters advise the
Corporation in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Corporation shall include in such registration (i) first, the securities
requested to be included therein by the Investor and Bared on a pro rata basis,
together with any securities underlying any warrants issued to the lenders or
underwriters of the Corporation on a pro rata basis, (ii) second, other
securities requested by other persons to be included in such registration.
5. Registration Procedures. Whenever the Stockholders have requested
that any securities be registered pursuant to this Agreement, the Corporation
shall use its best efforts to effect the registration and the sale of such
securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Corporation shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Corporation shall furnish to the counsel selected by
the Stockholders covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to the review
and comment of such counsel);
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the securities owned by such seller;
(d) use its best efforts to register or qualify such
securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such seller
(provided that the Corporation shall not be required to (i) qualify generally to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of Stockholder Shares, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Corporation shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Stockholder Shares, such prospectus will not contain an untrue statement
of a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) cause all such securities to be listed on each securities
exchange on which similar securities issued by the Corporation are then listed
and, if not so listed, to be listed on the NASD automated quotation system and,
if listed on the NASD automated quotation system, use its best efforts to secure
designation of all such securities covered by such registration statement as a
Nasdaq national market security within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure Nasdaq
authorization for such securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such securities with the NASD;
(g) provide a transfer agent and registrar for all such
securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the Selling Stockholder or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such securities (including, without
limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Corporation, and cause the Corporation's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Corporation's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) permit the Selling Stockholder which, in its sole and
exclusive judgment, might be deemed to be an underwriter or a controlling person
of the Corporation, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Corporation in writing, which in the reasonable judgment of the Selling
Stockholder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Corporation shall use its best efforts promptly to obtain the
withdrawal of such order; and
(m) in the event of an underwritten offering obtain a cold
comfort letter from the Corporation's independent public accountants and an
opinion from the Corporation's counsel in customary form and covering such
matters of the type customarily covered by cold comfort letters or opinions,
respectively as any underwriter may reasonably request.
6. Registration Expenses.
(a) All expenses incident to the Corporation's performance of
or compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Corporation and all independent certified
public accountants, underwriters (excluding discounts and commissions and
selling expenses (including brokers' fees and commissions)) and other persons
retained by the Corporation (all such expenses being herein called "Registration
Expenses"), shall be borne by the Corporation as provided in this Agreement,
except that the Corporation shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Corporation are then listed
or on the NASD automated quotation system.
(b) In connection with each Piggyback Registration or Short
Form Registration, the Corporation shall reimburse the Stockholders for the
reasonable fees and disbursements to the extent the Corporation's counsel has
not performed the work.
(c) To the extent Registration Expenses are not required to be
paid by the Corporation, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
7. Indemnification.
(a) The Corporation agrees to indemnify, to the extent
permitted by law, the Selling Stockholder, its officers and directors and each
person who controls the Selling Stockholder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Corporation by the Selling
Stockholder expressly for use therein or by the Selling Stockholder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Corporation has furnished the Selling Stockholder
with a sufficient number of copies of the same. In connection with an
underwritten offering, the Corporation shall indemnify such underwriters, their
officers and directors and each person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Selling Stockholder.
(b) In connection with any registration statement in which the
Selling Stockholder is participating, the Selling Stockholder shall furnish to
the Corporation in writing such powers of attorney, custody agreements and
letters of direction and other information and affidavits as the Corporation
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, shall only have to indemnify
the Corporation, its directors and officers and each person who controls the
Corporation (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by the Selling Stockholder to
the Corporation for specific use in such registration statement, prospectus or
amendment or supplement thereto and which remained in the final prospectus
delivered to the purchaser of such securities; provided that the obligation to
indemnify shall be limited to the net amount of proceeds received by the Selling
Stockholder from the sale of Stockholder Shares pursuant to such registration
statement.
(c) Any person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and shall survive the transfer of securities.
The Corporation also agrees to make such provisions, as are reasonably requested
by any indemnified party, for contribution to such party in the event the
Corporation's indemnification is unavailable for any reason.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party, then each
indemnifying party, to the extent that it would have been or was obligated to
provide indemnification under this Section 7, shall contribute to the amount
paid or payable by such indemnified party as a result of the claims. losses,
changes or liabilities referred to in this Section 7 in such proportion as is
appropriate to reflect the relative benefits received by the Stockholders on the
one hand and the Corporation on the other. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law then
each indemnifying party shall contribute to such amount paid or payable by such
indemnified party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Stockholders on the one
hand and the Corporation on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Stockholders on the one hand or the
Corporation on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
8. Participation in Underwritten Registrations. No person may
participate in any registration hereunder which is underwritten unless such
person (i) agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the person or persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of securities included in any underwritten registration shall be required
to make any representations or warranties to the Corporation or the underwriters
other than representations and warranties regarding such holder and such
holder's intended method of distribution.
9. Legend. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the Transfer of any Stockholder
Shares shall be stamped or otherwise imprinted with legends in substantially the
following form (in addition to any other applicable legends).
"The shares of New UPC Common Stock represented by this
certificate are issued pursuant to the Plan of Reorganization for
United Petroleum Corporation, as confirmed by the United States
Bankruptcy Court for the District of Delaware. The Corporation's
Certificate of Incorporation contains restrictions prohibiting the
sale, transfer, disposition, purchase or acquisition of any shares of
Common Stock without the prior written authorization of the
Corporation's Board of Directors (or its designee) by or to any person
(a) who beneficially owns, directly or through attribution (as
determined under Section 382 of the Internal Revenue Code of 1986 as
amended from time to time (the "Code")), 5% or more of the total fair
market value of the then issued and outstanding shares of Common Stock
of the corporation, or (b) who, upon the sale, transfer, disposition,
purchase or acquisition of any shares of Common Stock of the
Corporation would beneficially own, directly or through attribution (as
determined under Section 382 of the Code), or would cause another
person beneficially to own, directly or through attribution (as
determined under Section 382 of the Code), 5% or more of the total fair
market value of the then issued and outstanding shares of common stock,
if that sale, transfer, disposition, purchase or acquisition would
jeopardize UPC's preservation of its federal income tax attributes
pursuant to Sections 382 or 383 of the Code; provided however, that for
so long as the percentage point changes in ownership of the common
stock (as described in Section 382(g)(1) of the Code) since the
Effective Date do not total more than thirty (30) percentage points,
the above restrictions shall be applied by substituting "10%" for "5%".
UPC will furnish a copy of its Certificate of Incorporation to the
holder of record of this certificate without charge upon written
request addressed to UPC at its principal place of business."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, REPURCHASE OPTIONS AND CERTAIN
OTHER AGREEMENTS SET FORTH IN A STOCKHOLDERS AGREEMENT DATED NOVEMBER
3, 1999. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF
AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
The Corporation shall imprint such legend on certificates evidencing
outstanding Stockholder Shares. The legend set forth above shall be removed from
the certificates evidencing any Stockholder Shares after the Termination Date.
10. Conflicting Agreements. Each Stockholder represents that it has not
granted and is not a party to any proxy, voting trust or other agreement which
is inconsistent with or conflicts with the provisions of this Agreement, and no
holder of Stockholder Shares shall grant any proxy or become party to any voting
trust or other agreement which is inconsistent with or conflicts with the
provisions of this Agreement. No Stockholder shall act, for any reason, as a
member of a group or in concert or enter into any agreement or arrangement with
any other person in connection with the acquisition, disposition or voting of
Stockholder Shares in any manner which is inconsistent with the provisions of
this Agreement.
11. Actions Consistent with Agreement. The Corporation shall not
circumvent this Agreement by taking any action through a subsidiary or affiliate
that would be prohibited under this Agreement. The certificate of incorporation
and bylaws of the Corporation may be amended in any manner permitted thereunder,
except that neither the certificate nor the bylaws shall be amended in any
manner that would conflict with, or be inconsistent with, the provisions of this
Agreement.
12. Definitions.
"Bared Directors" shall have the meaning set forth in Section
3(a)(ii) hereof.
"Corporation" shall have the meaning set forth in the preamble
and shall include all of the Corporation's subsidiaries.
"Independent Director" shall have the meaning set forth in
Section 3(a)(ii) hereof.
"Investor Directors" shall have the meaning set forth in
Section 3(a)(ii) hereof.
"Piggyback Registration" shall have the meaning set forth in
Section 4(a) hereof.
"Registration Expenses" shall mean all expenses related to
registration pursuant to Sections 4(a) and 4(b) of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Stockholder" shall have the meaning as set forth in the
preamble and shall include their permitted successors and assigns.
"Stockholder Shares" means (i) any common stock of the
Corporation purchased or otherwise acquired by any Stockholder (ii) any equity
securities issued or issuable directly or indirectly with respect to the Common
Stock referred to in clause (i) above by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, and (iii) any other shares of any class
or series of capital stock of the Corporation held by a Stockholder. As to any
particular shares constituting Stockholder Shares, such shares shall cease to be
Stockholder Shares when they have been sold to the public through a Public Sale
even if thereafter they are reacquired by a Stockholder.
"Transfer" shall have the meaning set forth in Section 1
hereof.
13. Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Corporation shall not record such Transfer on
its books or treat any purported transferee of such Stockholder Shares as the
owner of such shares for any purpose.
14. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Corporation, the Investor or Bared unless such
modification, amendment, termination or waiver is approved unanimously in
writing by the Corporation, the Investor and Bared. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
15. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
16. Entire Agreement. Except as set forth herein, this document
embodies the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
17. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Corporation and its successors and assigns and the Stockholders and any
permitted subsequent holders of Stockholder Shares and the respective successors
and permitted assigns of each of them, so long as they hold Stockholder Shares.
18. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
19. Remedies. The Corporation, the Investor and Bared shall be entitled
to enforce their rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Corporation, any Investor and Bared
may in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
20. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Corporation at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any subsequent
holder of Stockholder Shares subject to this Agreement at such address as
indicated by the Corporation's records, or at such address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party. Notices will be deemed to have been given hereunder
when delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Corporation's
address is:
United Petroleum Corporation
2620 Mineral Springs Road, Suite A
Knoxville, Tennessee 37917
21. Governing Law. This Agreement will be construed and interpreted in
accordance with and governed by the laws of the State of Delaware.
22. Termination. This Agreement shall expire on the tenth anniversary
of the date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
UNITED PETROLEUM CORPORATION
By:
Its:
INFINITY INVESTORS LIMITED
By:
Its:
FAIRWAY CAPITAL LIMITED
By:
Its:
SEACREST CAPITAL LIMITED
By:
Its:
Joe Bared
Miriam Bared