Exhibit 10.21
VOLUNTARY POOLING AGREEMENT
THIS AGREEMENT DATED FOR REFERENCE THE 18th DAY OF APRIL, 1997.
BETWEEN:
BENZ EQUITIES LTD., a Yukon company having an office at
1305-1090 West Georgia Street;
(the "Issuer")
AND:
C.M. OLIVER & COMPANY LIMITED 2nd Floor, 750 West
Georgia Street, Vancouver, B.C.;
(the "Agent")
AND:
THE UNDERSIGNED SECURITYHOLDERS of BENZ EQUITIES LTD.,
(the "Pooled Securityholders")
AND.
MONTREAL TRUST COMPANY OF CANADA, having an office at
510 Burrard Street, Vancouver, British Colombia, V6C 3B9;
(the "Trustee")
WHEREAS the Pooled Securityholders are the legal and beneficial owners of
certain common shares of the Issuer presently owned by them or to be acquired by
them upon exercise of special warrants, and are desirous of placing in a pool
the number of shares set opposite their names in Schedule "A" hereto attached
(the "Shares"), upon and subject to the terms and conditions hereinafter more
particularly set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
in consideration of the sum of Ten Dollars ($10) now paid by the parties hereto,
each to the other, the receipt and sufficiency of which is hereby acknowledged,
and in further consideration of the mutual covenants and conditions hereinafter
contained, the parties hereto agree (the "Agreement") as follows:
1. In this Agreement:
(a) "Agency Agreement" means the agreement dated March 5, 1997 whereby the
Issuer appointed C.M. Oliver & Company Limited as its agent to offer
1,910,000 special warrants;
(b) "Closing Date" means the date of the final closing of the private
placement of special warrants offered pursuant to the Agency Agreement;
(c) "Market Price" means at any date the weighted average price at which
the Issuer's common shares have traded during 20 trading days at a
daily volume of not less than 50,000 shares during a period of 30
consecutive trading days ending on the fifth trading day before such
date, on the Vancouver Stock Exchange, or if the Issuer's common
shares are listed on the Toronto Stock Exchange, then on the Toronto
Stock-Exchange. The weighted average price per share shall be
determined by dividing the aggregate sale price of all such shares
sold on the applicable exchange during the 20 trading days by the
total number of shares sold; and
(d) "Offering Price" means the price at which the special warrants of the
Issuer are sold pursuant to the Agency Agreement-,
2. The Pooled Securityholders hereby severally agree each with the other and
with the Trustee that they will respectively deliver or cause to be delivered
to the Trustee certificates for their securities of the Issuer as set out in
the said Schedule "A" to be held by the Trustee and released pro rata to the
Pooled Securityholders, subject to paragraphs 3 and 5, on the basis set forth
in Schedule "B".
3. With respect to those securities pooled hereunder which are convertible or
exercisable for shares of the Company (the "Convertible Securities"), the
Trustee is hereby authorized to release from pool any of such Convertible
Securities against delivery, for deposit hereunder, of the common shares of
the Company issued upon the conversion or exercise of the released
Convertible Securities.
4. Prentis B. Tomlinson, Jr. ("Tomlinson") confirms that 2,400,000 of the
shares and of the warrants which are being deposited hereunder by Boone
Petroleum Inc. ("Boone") and DNG Capital Corp. ("DNG") are subject to option
to Tomlinson until October 31, 1998 and will remain in pool after exercise of
all or any portion of such option by him until release on the basis of the
schedule set forth in Schedule "B". In the event of exercise of all or a
portion of the option by Tomlinson, written notice of such exercise will be
delivered to the Trustee by Boone, DNG and Tomlinson together with an amended
Schedule "B".
5. If at any time prior to three years after the Closing Date, the Market
Price of the Issuer's Shares equals at least twice the Offering Price (a
"Triggering Event"), the release schedule in paragraph 2 will be accelerated
by one year. After the first acceleration of the release schedule, a
Triggering Event for any further one year accelerations will be the Market
Price equalling at least twice the Market Price on which the previous
acceleration was based. The Trustee will be provided with written
notification from the Company and the Agent of any Triggering Event.
6. Each of the Pooled Securityholders are entitled to a letter or receipt from
the Trustee stating the number of Shares represented by certificates held for
him by the Trustee subject to the terms of this Agreement, but such letter or
receipt shall not be assignable.
7. Except with the written consent of the Agent and the Company:
(a) the Pooled Securityholders will not sell, deal in, assign, or
transfer in any manner whatsoever or agree to sell, deal in, assign
or transfer in any manner whatsoever any of the Shares or beneficial
ownership of or any interest in them; and
-2-
(b) the Trustee shall not accept or acknowledge any transfer, assignment,
declaration of trust or any other document evidencing a change in
legal and beneficial ownership or of interest in the Shares, except
as may be required by reason of the death or bankruptcy of any one or
more of the Pooled Securityholders, subject to this Agreement for
whatever person or persons, firm or corporation may thus become
legally entitled thereto.
8. This Agreement shall enure to the benefit of and be binding upon the parties
hereto and each of their heirs, executors, administrators, successors and
permitted assigns.
9. This Agreement may be executed in several parts in the same form and such
part as so executed shall together constitute one original agreement, and such
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this Agreement.
10. The parties hereto agree that in consideration of the Trustee agreeing to
act as Trustee as aforesaid, the Pooled Securityholders do hereby covenant and
agree from time to time and at all times hereinafter well and truly to save,
defend, and keep harmless and fully indemnify the Trustee, its successors and
assigns, from and against all loss, costs, charges, damages and expenses which
the Trustee, its successors or assigns, may at any time or times hereafter bear,
sustain. suffer or be put to for or by reason or on account of its acting as
Trustee pursuant to this Agreement.
11. It is further agreed by and between the parties hereto and, without
restricting the foregoing indemnity, that in case proceedings should hereafter
be taken in any Court respecting the shares hereby pooled, the Trustee shall not
be obliged to defend any such action or submit its rights to the Court until it
shall have been indemnified by other good and sufficient security in addition to
the indemnity hereinbefore given against costs of such proceedings.
12. It is further agreed by and between the parties hereto that this Agreement
shall be construed in accordance with the laws of the Province of British
Columbia. The parties hereby attorn to the jurisdiction of the courts of
competent jurisdiction of the Province of British Columbia.
IN WITNESS WHEREOF the Pooled Securityholders and the Trustee have executed the
presents as from the day and year first above written.
THE CORPORATE SEAL of BENZ )
EQUITIES LTD. was hereunto affixed in the )
presence of: )
)
/s/ Nick DeMare ) c/s
- ----------------------------------------- )
)
- ----------------------------------------- )
C.M. OLIVER & COMPANY LIMITED
Per:
/s/ C. N. O'Brian
- -----------------------------------------
-3-
THE CORPORATE SEAL of MONTREAL )
TRUST COMPANY OF CANADA was )
hereunto affixed in the presence of: )
) c/s
/s/ [ILLEGIBLE] )
- ------------------------------------ )
)
/s/ [ILLEGIBLE] )
- ------------------------------------ )
THE CORPORATE SEAL of TEXSTAR )
PETROLEUM, L.L.C. was hereunto affixed )
in the presence of: )
) c/s
)
- ------------------------------------ )
)
)
- ------------------------------------ )
THE CORPORTE SEAL of CALIBRE )
ENERGY, L.L.C. was hereunto affixed )
in the presence of: )
) c/s
)
- ------------------------------------ )
)
)
- ------------------------------------ )
THE CORPORATE SEAL of BOONE )
PETROLEUM INC. was hereunto affixed )
in the presence of: )
) c/s
)
- ------------------------------------ )
)
)
- ------------------------------------ )
THE CORPORATE SEAL of DNG )
CAPITAL CORP. was hereunto affixed )
in the presence of: )
) c/s
)
- ------------------------------------ )
)
)
- ------------------------------------ )
-4-
SIGNED, SEALED & DELIVERED )
by PRENTIS B. TOMLINSON, JR. )
in the presence of: )
)
/s/ Nick DeMare ) /s/ Prentis B. Tomlinson, Jr.
- ---------------------------------- ) ---------------------------------
Signature of Witness ) PRENTIS B. TOMLINSON, JR.
)
Name of Witness: Nick Demare )
----------------- )
)
Address of Witness: )
-------------- )
)
- ---------------------------------- )
)
Occupation of Witness: CA )
------------- )
SIGNED, SEALED & DELIVERED )
by TODD GRABOIS in the presence of: )
)
/s/ Lynn Ganey ) /s/ Todd Grabois
- ---------------------------------- ) ---------------------------------
Signature of Witness ) TODD GRABOIS
)
Name of Witness: Lynn Ganey )
------------------ )
)
- ---------------------------------- )
)
Occupation of Witness: )
------------ )
-5-
SIGNED, SEALED & DELIVERED )
by PRENTIS TOMLINSON, TRUSTEE )
OF THE SLATTERY TRUST in the )
presence of: )
)
/s/ Nick DeMare ) /s/ Prentis Tomlinson
- ---------------------------------- ) ---------------------------------
Signature of Witness ) TRUSTEE OF THE SLATTERY TRUST
)
Name of Witness: Nick Demare )
------------------ )
)
Address of Witness: )
--------------- )
)
Occupation of Witness: CA )
------------ )
SIGNED, SEALED & DELIVERED
by PRENTIS TOMLINSON, TRUSTEE
OF THE RUSTON TRUST in the presence
of:
/s/ Nick DeMare ) /s/ Prentis Tomlinson
- ---------------------------------- ) ---------------------------------
Signature of Witness ) TRUSTEE OF THE RUSTON TRUST
)
Name of Witness: Nick DeMare )
------------------ )
)
Address of witness: )
--------------- )
)
- ---------------------------------- )
)
Occupation of Witness: CA )
------------ )
-6-
SIGNED, SEALED & DELIVERED
by PRENTIS TOMLINSON, TRUSTEE
OF THE HOUSTON TRUST in the
presence of:
/s/ Nick DeMare ) /s/ Prentis Tomlinson
- ---------------------------------- ) ---------------------------------
Signature of Witness ) TRUSTEE OF THE HOUSTON TRUST
)
Name of Witness: Nick DeMare )
------------------ )
)
Address of Witness: )
--------------- )
)
- ---------------------------------- )
)
Occupation of Witness: CA )
------------ )
SIGNED, SEALED & DELIVERED
by HEATHER TOMLINSON, TRUSTEE
OF THE STARBUCKS TRUST in the
presence of.
/s/ Lynn Ganey ) /s/ Heather Tomlinson
- ---------------------------------- ) ---------------------------------
Signature of Witness ) TRUSTEE OF THE STARBUCKS TRUST
)
Name of Witness: Lynn Ganey )
------------------ )
)
Address of Witness: )
--------------- )
)
- ---------------------------------- )
)
Occupation of Witness: )
------------ )
-7-
SIGNED, SEALED & PELIVERED )
by ROBERT NOVAK in the presence of: )
)
/s/ Lynn Ganey ) /s/ Robert Novak
- ----------------------------------- ) ---------------------------------
Signature of Witness ) ROBERT NOVAK
)
Name of Witness: Lynn Ganey )
------------------- )
)
Address of Witness: )
---------------- )
)
- ----------------------------------- )
)
Occupation of Witness: )
------------- )
)
-8-
SCHEDULE"A"
FULL NAME AND ADDRESS NUMBER OF SIGNATURE OF
OF SECURITYHOLDER SECURITIES SECURITYHOLDER
- --------------------- ---------------- -----------------------------
Texstar Petroleum, L.L.C. 361,304 Texstar Petroleum, L.L.C.
1000 Louisiana, Ste 5500 shares Per:
Houston, Texas 77002 /s/ Prentis B. Tomlinson, Jr.
-----------------------------
Prentis B. Tomlinson, Jr.
Calibre Energy, L.L.C. 331,193(1) Calibre Energy, L.L.C.
1000 Louisiana, Ste 3900 special warrants Per:
Houston, Texas 77002 /s/ Prentis B. Tomlinson, Jr.
-----------------------------
Prentis B. Tomlinson, Jr.
Boone Petroleum Inc. 3,200,000(2)(3) Boone Petroleum Inc.
1305-1090 West Georgia shares/warrants Per:
Vancouver, B.C. V6E 3V7 /s/ Donald Busby
-----------------------------
Donald Busby
DNG Capital Corp. 800,000(4)(5) DNG Capital Corp.
1305-1090 West Georgia shares/warrants Per:
Vancouver, B.C. V6E 3V7 /s/ Nick Demare
-----------------------------
Nick DeMare
Todd Grabois 267,750
9919 Ashridge Park, shares
Spring, Texas 77379 /s/ Todd Grabois
-----------------------------
Todd Grabois
Slattery Trust 4,972,500 Trustee of the Slattery Trust
P.O. Box 61268 shares /s/ Prentis B. Tomlinson, Jr.
Houston, Texas 77208-1268 -----------------------------
Prentis B. Tomlinson, Jr.
Ruston Trust 765,000 Trustee of the Ruston Trust
P.O. Box 61268 shares /s/ Prentis B. Tomlinson, Jr.
Houston, Texas 77208-1268 -----------------------------
Prentis B. Tomlinson, Jr.
-9-
Houston Trust 765,000 Trustee of the Houston Trust
P.O. Box 61268 shares /s/ Prentis B. Tomlinson, Jr.
Houston, Texas 77208-1268 -----------------------------
Prentis B. Tomlinson, Jr.
Starbucks Trust 765,000 Trustee of the Starbucks Trust
P.O. Box 61268 shares /s/ Heather Tomlinson
Houston, Texas 77208-1268 -----------------------------
Heather Tomlinson
Robert Novak 114,750
6326 Willgus Trail shares /s/ Robert Novak
Lane, Texas 77066 ---------- -----------------------------
Robert Novak
TOTAL: 12,342,497
----------
----------
- --------------------
(1) Convertible into 331,193 shares on the earlier of the 5th business day
following receipt of the Company's prospectus qualifying the securities
issuable on exercise of the special warrants and February 11, 1998.
(2) Comprised of 1,600,000 shares and 1,600,000 warrants exercisable for
1,600,000 shares on or before July 29, 1998.
(3) 1,600,000 shares and 300,000 warrants exercisable for 300,000 shares on
or before July 29, 1998 are subject to option to Prentis Tomlinson, Jr.
as per paragraph 4 of the Voluntary Pooling Agreement.
(4) Comprised of 400,000 shares and 400,000 warrants exercisable for 400,000
shares on or before July 29, 1998.
(5) 400,000 shares and 100,000 warrants exercisable for 100,000 shares on or
before July 29, 1998 are subject to option to Prentis Tomlinson, Jr. as
per paragraph 4 of the Voluntary Pooling Agreement.
-10-
SCHEDULE"B"
RELEASE DATES(1)
----------------------------------------------------------------
NAME OF SECURITYHOLDER APRIL 18,1998 APRIL 18,1999 APRIL 18, 2000
- -------------------------- ------------- ------------- --------------
Texstar Petroleum, L.L.C. 0 0 361,304
Calibre Energy, L.L.C. 99,224 99,224 132,745
Boone Petroleum Inc.(2) 390,000 390,000 520,000
Boone Petroleum Inc.(2)(3) 570,000 570,000 760,000
DNG Capital Corp.(2) 90,000 90,000 120,000
DNG Capital Corp.(2)(3) 150,000 150,000 200,000
Todd Grabois 80,325 80,325 107,100
Slattery Trust 723,779 1,975,725 2,272,996
Ruston Trust 229,500 229,500 306,000
Houston Trust 229,500 229,500 306,000
Starbucks Trust 229,500 229,500 306,000
Robert Novak 34,425 34,425 45,900
------------- ------------- --------------
TOTAL 2,826,253 4,078,199 5,438,045
------------- ------------- --------------
------------- ------------- --------------
- --------------------
(1) Subject to acceleration pursuant to paragraph 5 of the Voluntary Pooling
Agreement.
(2) All shares pooled by this securityholder to be released prior to release
of any warrants.
(3) Subject to option to Prentis Tomlinson, Jr. as per paragraph 4
of this Voluntary Pooling Agreement.
-11-