1
EXHIBIT 10.7
AGREEMENT AMONG MEMBERS
THIS AGREEMENT AMONG MEMBERS (this "Agreement") is entered into as of
June 30, 1999, by and among EXUS Energy, LLC, a Delaware limited liability
company (the "Company"), Venus Exploration, Inc., a Delaware corporation
("Venus"), and EXCO Resources, Inc., a Texas corporation ("EXCO", and together
with Venus and any person who becomes a party hereto by executing Exhibit A
hereto, the "Members").
R E C I T A L S
A. The Members have formed the Company pursuant to the terms of that
certain Limited Liability Company Agreement dated an even date herewith (the
"LLC Agreement").
B. Venus has acquired 100 units of Class A Voting Interests (the "Class
A Units") of the Company, representing 50% of the initial equity interest of the
Company (such equity interest being the "Venus Units"). EXCO has acquired 100
Class A Units of the Company, representing 50% of the initial equity interest in
the Company (such equity interest being the "EXCO Units").
C. The Members acknowledge that their respective continued equity
ownership of, and active participation in, the Company are crucial to the
execution of the business strategy of the Company.
D. The parties believe that it is in the best interests of the Company
to restrict the disposition of Class A Units and any other equity interest in
the Company, whether now owned or hereafter acquired.
E. The parties also believe that it is in the best interests of the
Company to permit either Member to participate in certain transactions involving
the other Member's equity interests in the Company, on the terms and conditions
set forth herein.
F. The parties acknowledge that in the course of the Company's affairs,
Venus and EXCO may disagree in good faith about the management of the Company
and that such disagreements may become irreconcilable. Accordingly, the parties
believe that it is in the best interests of the Company to provide for the sale
and purchase of the Class A Units owned by Venus and EXCO, whether now owned or
hereafter acquired, in the event of any irreconcilability differences.
2
A G R E E M E N T
Based on the recitals set forth above and the mutual promises contained
herein, the parties agree as follows:
ARTICLE 1
Permitted Dispositions
1.1 Prohibitions on Dispositions of Venus Units. Prior to the EXCO
Repayment (defined below), Venus shall not sell, assign, transfer (whether or
not for consideration), register for transfer, gift, donate, subject to an
option to purchase, pledge (other than that pledge of Venus Units to EXCO to
secure the Convertible Note (defined below)), encumber, hypothecate, or in any
manner dispose of any Venus Units, or subject any Venus Units to an agreement to
do any of the foregoing (any of the foregoing actions being referred to herein
as a "Disposition", whether applicable to Venus Units or EXCO Units) without
EXCO's consent, which consent may not be unreasonably withheld.
After the EXCO Repayment has occurred, Venus shall not pledge, encumber
or hypothecate any Venus Units or subject any Venus Units to an agreement to do
any of the foregoing without the prior written consent of EXCO, which consent
may not be unreasonably withheld, and shall not make any other Disposition of
the Venus Units except in accordance with the other provisions of this
Agreement.
Any attempted Disposition of Venus Units, except in accordance
herewith, shall be void and ineffectual.
"Convertible Note" means that certain convertible note dated an even
date herewith made by Venus and payable to EXCO.
"EXCO Loan" means the aggregate amounts loaned by EXCO to Venus
pursuant to the Convertible Note plus all interest due thereon and other charges
owed by Venus to EXCO pursuant to the terms of the Convertible Note.
"EXCO Repayment" means the time at which Venus has either (a) paid in
full the EXCO Loan or (b) the Convertible Note have been converted in their
entirety to common stock of Venus and all interest and other charges due under
the Convertible Note have been paid in cash or common stock of Venus to the
extent permitted by the Convertible Note.
"Net Proceeds" from a Disposition means cash proceeds received
therefrom net of (a) all legal, title and recording expenses, commission and
other fees and expenses incurred, and all federal, state, foreign and local
taxes required to be paid or accrued as a liability under GAAP as a consequence
of such Disposition.
1.2 Prohibitions on Dispositions of EXCO Units. EXCO shall not pledge,
encumber or hypothecate any EXCO Units or subject any EXCO Units to an agreement
to do any of the foregoing without the prior written consent of Venus, which
consent may not be unreasonably withheld, and
2
3
shall not make any other Disposition of the EXCO Units except in accordance with
the other provisions of this Agreement.
Any attempted Disposition of EXCO Units, except in accordance herewith,
shall be void and ineffectual.
1.3 Right of First Refusal on Voluntary Dispositions. Either Venus or
EXCO may sell, assign, transfer, register for transfer, gift, donate or subject
to an option to purchase any or all of their Class A Units (the disposing member
being the "Selling Member"), subject to the non-disposing member's (herein, the
"Optionee Member") right of first refusal (whether under this Section or under
Section 1.4; the "Right of First Refusal"); provided, that, subject to Section
1.1 Venus may not undertake any Disposition of Venus Units prior to EXCO
Repayment. If a Selling Member wishes to sell, assign, transfer, register for
transfer, gift, donate or subject to an option to purchase any of their Class A
Units as permitted in this Section 1.3, then the Selling Member shall enter into
a written agreement (the "Purchase Agreement") with a third party (the
"Offeror"), providing for the purchase by the Offeror of all or a portion of the
Selling Member's Class A Units. Whether or not stated in the Purchase Agreement,
the Offeror's right to purchase, and the Selling Member's right to sell, any or
all of the Selling Member's Class A Units shall be subject to the Optionee
Member's Right of First Refusal. Not later than the fifth day after the
execution by the Selling Member and the Offeror of the Purchase Agreement, the
Selling Member shall deliver a written notice (the "Notice") to the Optionee
Member, notifying the Optionee Member that the Selling Member wishes to sell the
Selling Member's Class A Units and setting forth the number of the Selling
Member's Class A Units to be so sold. The Selling Member shall attach to the
Notice a copy of the Purchase Agreement, together with all exhibits and other
attachments. If the Purchase Agreement is subject to a financing condition, then
(a) the Selling Member shall attach to the Notice a copy of a letter from a
recognized regional or national investment banking firm addressed to the Selling
Member to the effect that such firm believes that there is a substantial
likelihood that the Offeror will be able to obtain the financing necessary to
satisfy the financing condition and (b) the Offeror shall covenant in the
Purchase Agreement to use commercially reasonable efforts to obtain such
financing. The Notice also shall identify the Offeror and any "ultimate parent
entity" (or entities) (as that term is defined in the Hart-Scott-Rodino
Antitrust Improvements Act) of the Offeror, and all other terms, agreements or
understandings with respect to the transaction not otherwise disclosed in the
Notice or the Purchase Agreement (and the exhibits and attachments thereto).
On or before the thirtieth day after the Optionee Member's receipt of
the Notice, the Optionee Member shall notify the Selling Member in writing
whether the Optionee Member wishes to exercise its Right of First Refusal. If
the Selling Member exercises its Right of First Refusal pursuant to this Section
1.3, then the Optionee Member shall purchase all, and not less than all, of the
Selling Member's Class A Units that were the subject of the Purchase Agreement
on the same terms and conditions set forth in the Purchase Agreement; provided,
however, that if the Purchase Agreement provides for the delivery to the Selling
Member of securities of the Offeror, then the Optionee Member may in its sole
discretion deliver cash or substantially equivalent debt or equity securities of
the Optionee Member as payment for the Selling Member's Class A Units; provided,
further, that if the Selling Member and the Optionee Member are unable to agree
not later than 15 days prior to the closing date on the valuation of the
securities to be delivered by Optionee Member, the Members shall submit the
valuation to a mutually agreeable investment banker for determination. Such
3
4
valuation shall be accomplished within 10 days of submission to the investment
banker. The determination by the investment banker shall be final and binding
upon the Members. All costs and fees of the investment banker shall be borne
equally by the Members.
If the Optionee Member exercises the Right of First Refusal pursuant to
this Section 1.3, then the Optionee Member shall consummate the purchase of the
Selling Member Units not later than the sixtieth day after the date on which the
Optionee Member delivers notice to the Selling Member to the effect that the
Optionee Member will exercise its Right of First Refusal pursuant to this
Section 1.3.
If the Optionee Member does not timely notify the Selling Member that
the Optionee Member will exercise its Right of First Refusal pursuant to this
Section 1.3 or if the Optionee Member notifies the Selling Member that the
Optionee Member will not exercise its Right of First Refusal pursuant to this
Section 1.3, then the Selling Member may consummate the sale of the applicable
Selling Member's Class A Units to the Offeror; provided, however, that (a) the
Selling Member's Class A Units must be transferred at the same price and on
terms and conditions not more favorable to the Offeror than those contained in
the Purchase Agreement delivered to the Optionee Member pursuant to the Notice
and (b) such transaction must be consummated not later than a commercially
reasonable time after (i) the Optionee Member notifies the Selling Member that
the Optionee Member will not exercise its Right of First Refusal pursuant to
this Section 1.3 or (ii) the expiration of the thirty-day period during which
the Optionee member can give timely notice of its exercise of its Right of First
Refusal pursuant to this Section 1.3, without the timely delivery by the
Optionee Member of such notice. If the transaction with the Offeror is not
consummated in accordance with the immediately-preceding sentence, then no
Disposition may occur unless the Selling Member again offers the Selling
Member's Class A Units to the Optionee Member in accordance with the provisions
of this Section 1.3. From and after the consummation of the sale of the Selling
Member's Class A Units to the Offeror, neither the Offeror nor the Selling
Member Units transferred to such Offeror shall be bound by any obligation or
entitled to any right under this Agreement.
A transaction pursuant to Article 2 shall not constitute a Disposition
that is subject to the Optionee Member's Right of First Refusal under this
Section 1.3.
1.4 Right of First Refusal on Prohibited or Involuntary Dispositions.
If at any time a Selling Member:
(a) shall make or enter into a binding agreement to make a
Disposition of any Selling Member's Class A Units or any interest therein in
violation of Section 1.1, or Section 1.2 or Section 1.3 hereof;
(b) shall make an assignment for the benefit of creditors;
(c) shall file, or consent to the filing of, a petition under any
federal or state insolvency, bankruptcy, reorganization or similar law
(collectively "Bankruptcy Law") or petition for, or consent to, the taking of
possession by a trustee, receiver or similar official of any of the Selling
Member's assets;
4
5
(d) shall be adjudicated or declared as bankrupt or insolvent
under any Bankruptcy Law;
(e) shall suffer an attachment, sequestration, foreclosure,
turnover order, writ of execution or garnishment, or any other method of seizure
to be levied against any of Selling Member's Class A Units or any interest
therein, which attachment, sequestration, foreclosure, turnover order, writ of
execution or garnishment is not otherwise satisfied or terminated prior to the
time of the transfer of such Selling Member's Class A Units or any interest
therein; or
(f) shall have any Class A Units, or any interest therein,
subjected to a Disposition in any other way whatsoever (other than as permitted
in Section 1.1, Section 1.2 or Section 1.3 above);
(any of the foregoing being referred to as a "Transfer Event"); then the Selling
Member or its representative, as applicable, shall within five days of such
Transfer Event deliver a written notice (the "Transfer Event Notice") to the
Optionee Member, setting forth in reasonable detail the circumstances of such
Transfer Event. A transaction pursuant to Article 2 shall not constitute a
Transfer Event.
The Transfer Event Notice shall constitute an offer of the entire
record and beneficial interest in the Selling Member's Class A Units involved in
the Transfer Event (the "Offered Units") for sale to the Optionee Member at the
price and on the terms and conditions set forth in this Section. If the Transfer
Event Notice is not delivered to the Optionee Member, then upon being advised of
any such Transfer Event, the Optionee Member shall notify the Selling Member or
its representative, as applicable, that the Offered Units are deemed offered to
the Optionee Member. In such case, the Transfer Event Notice shall be deemed
received by the Optionee Member on the date the Optionee Member mails the
above-described notice to the Selling Member or its representative (as
applicable).
If the Optionee Member elects to purchase the Offered Units pursuant to
this Section 1.4, then the purchase price for such units shall be the fair
market value of such units as determined by the Independent Appraiser (defined
below), calculated based on the valuation methodology set forth in Section
5.4(i) of the Pledge Agreement, dated on or about June 30, 1999, between EXCO
and Venus ("the Pledge Agreement"). The Optionee Member may pay the purchase
price for the Offered Units by delivering to the Selling Member or its
representative (as applicable) a promissory note payable in five equal annual
installments and bearing interest at 7% per annum.
"Independent Appraiser" means Netherland Sewell & Associates, Inc. (or
any successor of any such firm).
Upon receipt (including in all cases a deemed receipt) of the Transfer
Event Notice, the Offered Units shall be deemed to be offered to the Optionee
Member, which shall have thirty days from the date the Selling Member receives
the Transfer Event Notice to determine whether the Optionee Member wishes to
purchase the Offered Units and to notify Selling Member or its representative,
(as applicable) of such decision. If the Optionee Member wishes to purchase the
Offered Units, then such purchase shall be consummated not later than the
sixtieth day after the later
5
6
of (i) the date on which the Independent Appraiser delivers its valuation report
or (ii) the date on which the Optionee Member notifies the Selling Member or its
representative (as applicable) of the Optionee Member's exercise of the Right of
First Refusal pursuant to this Section 1.4.
If the Optionee Member elects not to purchase the Offered Units
pursuant to this Section 1.4, then such Offered Units may be disposed of
pursuant to the description of the Transfer Event in the Transfer Event Notice;
provided, however, such transaction must be consummated within a commercially
reasonable time after (i) the Optionee Member notifies the Selling Member that
the Optionee Member will not exercise its Right of First Refusal pursuant to
this Section 1.4 or (ii) the expiration of the thirty-day period during which
the Optionee Member can give timely notice of its exercise of its Right of First
Refusal pursuant to this Section 1.4, without the timely delivery by the
Optionee Member of such notice; provided further, that the acquiror or recipient
of the Selling Member's Class A Units involved in the Disposition must first
execute and deliver an agreement in the form attached hereto as Exhibit A. The
Offered Units must be disposed of at the same price and on terms and conditions
no more favorable to the outside purchaser as those contained in the Transfer
Event Notice. If such price, terms or conditions are to vary or if the
Disposition is not consummated in accordance with the first sentence of this
paragraph, then no Disposition may occur unless the Selling Member or its
representative (as applicable) again offers the Offered Units to the Optionee
Member in accordance with the provisions of this Section 1.4.
1.5 Proxies. No member may grant a proxy to any person, other than a
revocable proxy not to exceed seven days in duration granted for the sole
purpose of voting for members of the Management Committee at the annual meeting
of the members of the Company.
ARTICLE 2
Buy-Sell Upon Irreconcilable Differences
2.1 Triggering Event. Neither EXCO nor Venus shall have any rights
under this Article 2 unless (a) the Members (as defined in the LLC Agreement)
are unable to resolve a disagreement regarding an action that cannot be taken
without a Supermajority Vote of the Members (as defined in the LLC Agreement)
(such a disagreement being referred to herein as a "Material Disagreement"), (b)
EXCO or Venus notifies the other Member in writing that the notifying Member
wishes to proceed to non-binding mediation in an effort to resolve the Material
Disagreement, (c) the Members mediate the Material Disagreement with an
independent mediator selected by agreement of the Members and (d) the Material
Disagreement is not resolved within thirty days after the completion of such
mediation. A Material Disagreement that satisfies each of the foregoing
requirements shall constitute an "Irreconcilable Difference."
2.2 Independent Appraisal. Upon the occurrence of an Irreconcilable
Difference, either EXCO or Venus may demand that the Management Committee of the
Company select an Independent Appraiser and that such Independent Appraiser be
engaged by the Company to determine the fair market value of the Company. The
Independent Appraiser promptly shall determine the fair market value of the
Company based on the valuation methodology set forth in Section 5.4(i) of the
Pledge Agreement.
6
7
2.3 Offer. Either Venus or EXCO (the "Offering Party") may send a
written notice (the "Buy-Sell Notice") to the other party (the "Electing
Party"), provided that the Buy-Sell Notice must be delivered to the Electing
Party not later than the sixtieth day after the date of the Independent
Appraiser's report. If both Venus and EXCO deliver such a notice, then the
notice that is actually delivered first in time shall constitute the Buy-Sell
Notice and the second-delivered notice shall have no force and effect hereunder.
The Buy-Sell Notice must state that the Offering Party thereby offers to
purchase all, and not less than all, of the Electing Party's units in the
Company. If Venus is the Offering Party, then it shall offer to purchase EXCO's
Units based on the pro rata portion of the Company's fair market value that
EXCO's Units represent. If EXCO is the Offering Party, then EXCO shall offer to
purchase the Venus' Units based on the pro rata portion of the Company's fair
market value that the Venus Units represent.
2.4 Electing Party's Option. Not later than the tenth (10th) after the
Electing Party's receipt of the Buy-Sell Notice, the Electing Party shall
deliver to the Offering Party a written notice setting forth the Electing
Party's decision whether to accept the Offering Party's offer or instead to
purchase all of the Units of the Offering Party. If the Electing Party accepts
the Offering Party's offer, then the purchase price for the Electing Party's
Units shall be the amount set forth in the Buy-Sell Notice. If, however, the
Electing Party elects to purchase the Offering's Party's Units, then the
purchase price to be paid by the Electing Party shall be the price the Electing
Party would have offered to the Offering Party pursuant to Section 2.3 if the
Electing Party originally had been the Offering Party. If the Electing Party
does not deliver to the Offering Party a written notice setting forth the
Electing Party's decision on or before the tenth (10th) day after the Electing
Party's receipt of the Buy/Sell Notice, then the Electing Party shall be deemed
to have accepted the Offering Party's offer to purchase the Electing Party's
Units.
2.5 Buy-Sell Closing. A transaction pursuant to this Article 2 must be
consummated no later than the 90th day after the earlier of (a) the date on
which the Offering Party is notified whether the Electing Party will buy or sell
hereunder or (b) the expiration of the tenth (10th) day after the Electing Party
receives the Buy-Sell Notice, if the Electing Party has not delivered a notice
of its election hereunder. The purchase price under this Article 2 shall be paid
in cash.
2.6 Failure to Consummate Buy-Sell. If an Offering Party or an Electing
Party who has elected to purchase the Offering Party's Units (as applicable, the
"Defaulting Member") fails to consummate the purchase of all of the Units of the
other party (the "Non-Defaulting Member") pursuant to this Article 2, then the
Non-Defaulting Member shall have the right to acquire the Defaulting Member's
Units at a price equal to the product of (i) the Defaulted Member's pro rata
share of the Company's fair market value (as determined in accordance with
Section 2.2) represented by the Defaulted Member's Units multiplied by (ii) .90.
Such election shall be consummated within the time limits set forth in Sections
2.4 and 2.5.
7
8
ARTICLE 3
Miscellaneous
3.1 Legend. The following legend shall be placed on all certificates
representing Class A Units:
"The units evidenced by this certificate are subject to an Agreement
Among Members dated as of June 30, 1999, containing certain rights and
limitations on transfer, including without limitation certain buy-sell
obligations and certain rights of co-sale. A copy of that agreement is
on file at the principal place of business or the registered office of
the Company, and a copy may be obtained without charge upon written
request to the Company at its principal place of business or its
registered office."
3.2 Termination. This Agreement shall automatically terminate upon the
occurrence of any of the following events:
(a) The filing by the Company, or the consent by the Company to the
filing of, a petition under any Bankruptcy Law or a petition for, or consent to,
the taking of possession by a trustee, receiver or similar official of all or
substantially all of the Company's assets;
(b) The adjudication or declaration of the Company as bankrupt or
insolvent under any Bankruptcy Law;
(c) The execution and delivery by the Company of, or the consent
to, an assignment for the benefit of the Company's creditors;
(d) The Disposition of all of the Venus Class A Units or all of the
EXCO Class A Units, but only as to such Member and such units;
(e) The consummation of the complete liquidation of the Company; or
(f) The termination of the LLC Agreement.
3.3 Binding Effect. This Agreement shall be binding upon the parties
hereto, their heirs, administrators, executors and successors. This Agreement is
not assignable by the parties hereto; provided, however, that such Member may
assign this Agreement and such Member's rights hereunder to any affiliate of
such Member. Except as expressly set forth herein, there shall be no third party
beneficiary of this Agreement.
3.4 Specific Performance. The parties acknowledge that remedies at law
will be inadequate remedies for breach hereof and consequently agree that this
Agreement shall be enforceable by specific performance, without posting a bond
or other security and without proof of actual damages. The remedy of specific
performance shall be in addition to all other rights and remedies at law or in
equity of the parties hereunder.
8
9
3.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
3.6 Indulgences, Etc. Neither the failure nor any delay on the part of
any party to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power, or privilege with respect to any occurrence be construed
as a waiver of such right, remedy, power or privilege with respect to any other
occurrence.
3.7 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid, return receipt requested, or delivered by
hand, telecopier (with a hard copy via regular mail), messenger or overnight
courier, and shall be deemed given when received at the addresses set forth
below, or at such other address furnished in writing to the other parties
hereto.
If to Venus: Venus Exploration, Inc.
1250 N.E. Loop 410
Suite 1000
San Antonio, Texas 78209
Facsimile: (210) 828-6016
Attention: President
If to EXCO: EXCO Resources, Inc.
5735 Pineland Drive
Suite 235
Dallas, Texas 75231
Facsimile: (214) 368-2087
Attention: President
If to the Company: c/o EXCO Resources, Inc.
5735 Pineland Drive
Suite 235
Dallas, Texas 75231
Facsimile: (214) 368-2087
Attention: President
3.8 Provisions Separable. The provisions hereof are independent of and
separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
3.9 Entire Agreement. This Agreement and the Exhibits hereto contain
the entire understanding between the parties hereto with respect to the subject
matter hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or
9
10
implied, oral or written, except as herein contained, which shall be deemed
terminated effective immediately. The express terms hereof control and supersede
any course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
3.10 Headings; Index. The headings of paragraphs and Sections herein
are included solely for convenience of reference and shall not control the
meaning or interpretation of any of the provisions hereof. References to
"Sections" herein are references to sections hereof. The words "herein,"
"hereof," "hereto" and "hereunder" and other words of similar import refer
hereto as a whole and not to any particular Article, Section or other
subdivision.
3.11 Governing Law. This Agreement shall be governed by, construed,
interpreted and applied in accordance with the laws of the State of Texas,
without giving effect to any conflict of laws rules that would refer the matter
to the laws of another jurisdiction.
Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Northern District of
Texas and, if such court does not have jurisdiction, of the courts of the State
of Texas sitting in Dallas County, for the purposes of any action arising out
hereof, or the subject matter hereof, brought by any other party.
To the extent permitted by applicable law, each Member hereby waives
and agrees not to assert, by way of motion, as a defense or otherwise in any
such action, any claim (i) that it is not subject to the jurisdiction of the
above-named courts, (ii) that the action is brought in an inconvenient forum,
(iii) that it is immune from any legal process with respect to itself or its
property, (iv) that the venue of the suit, action or proceeding is improper or
(v) that this Agreement, or the subject matter hereof, may not be enforced in or
by such courts.
3.12 Voluntary Agreement Each Member acknowledges that he has had
sufficient time and opportunity to read and understand this Agreement and to
consult with his legal counsel and other advisers regarding the terms and
conditions set forth herein.
* * * * *
10
11
This Agreement has been executed and delivered as of the date first
written above.
Venus Exploration, Inc.
By: /s/ JOHN Y. AMES
------------------------------------
John Y. Ames
President
EXCO Resources, Inc.
By: /s/ T.W. EUBANK
------------------------------------
T.W. Eubank
President
EXUS ENERGY, LLC
By: /s/ T.W. EUBANK
------------------------------------
T.W. Eubank
President
11
12
EXHIBIT A
FORM OF ADDENDUM AGREEMENT
This Addendum Agreement (this "Addendum Agreement") made this ____ day
of _____________, ___ among ______________ (the "New Member"), EXUS Energy, LLC,
a Delaware limited liability company (the "Company"), and such Members (the
"Members") of the Company who are parties to that certain Agreement Among
Members dated as of June 30, 1999 (the "Agreement"), among the Company and the
Members.
W I T N E S S E T H:
WHEREAS, the Company and the Members entered into the Agreement to
impose certain restrictions and obligations upon the Members and the units of
membership interest of the Company (the "Units") owned by such Members;
WHEREAS, the New Member is desirous of becoming a Member of the
Company; and
WHEREAS, the Company and the Members have required in the Agreement
that all persons being offered Units must enter into an Addendum Agreement
binding the New Member to the Agreement to the same extent as if it were an
original party thereto, so as to promote the mutual interests of the Company,
the Members and the New Members by imposing the same restrictions and
obligations on the New Member and the Units, as the case may be, to be acquired
by the New Member as were imposed upon the Members under the Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the parties,
and as a condition of the purchase of the Units, the New Member acknowledges
that the New Member has read the Agreement. The New Member shall be bound by,
and shall have the benefit of, all the terms and conditions set out in the
Agreement to the same extent as if the New Member were a "Member" as defined in
the Agreement. This Addendum Agreement shall be attached to and become a part of
the Agreement.
New Member
-----------------------------------------
Name:
------------------------------------
Address (including fax number) for
notices under the Agreement:
-------------------------------------
-------------------------------------
-------------------------------------
A-1
13
Agreed to on behalf of the Members and the Company pursuant to the
Agreement.
EXUS Energy, LLC
By:
-------------------------------------
Name:
-----------------------------------
A-2