MUTUAL NON-DISPARAGEMENT AGREEMENT
THIS MUTUAL NON-DISPARAGEMENT AGREEMENT (the "Agreement") is entered into
this 8th day of June, 2006 by and among (A) Rex Energy Royalties Limited
Partnership, a Delaware limited partnership ("Rex Royalties"), PennTex
Resources, L.P., a Texas limited partnership ("PennTex Resources"), PennTex
Resources Illinois, Inc., a Delaware corporation ("PennTex Illinois"), Douglas
Oil & Gas Limited Partnership, a Delaware limited partnership ("Douglas O&G"),
Douglas Westmoreland Limited Partnership, a Delaware limited partnership
("Douglas Westmoreland"), Midland Exploration Limited Partnership, a Delaware
limited partnership ("Midland"), Rex Energy Operating Corp., a Delaware
corporation ("Rex Energy"), Rex Energy Wabash, LLC, a Delaware limited liability
company ("Rex Wabash"), Lance T. Shaner, an individual residing in the
Commonwealth of Pennsylvania ("Shaner"), and Benjamin W. Hulburt, an individual
residing in the Commonwealth of Pennsylvania ("Hulburt") (Rex Royalties, PennTex
Resources, PennTex Illinois, Douglas O&G, Douglas Westmoreland, Midland, Rex
Energy, Rex Wabash, Shaner and Hulburt being sometimes referred to hereinafter
individually as a "Seller" and in the aggregate as "Sellers"), (B) Thomas F.
Shields, Michael S. Carlson, Christopher K. Hulburt and Thomas C. Stabley, all
individuals residing in the Commonwealth of Pennsylvania (such individuals,
together with Shaner and Hulburt, being referred to hereinafter in the aggregate
as the "Acquirers"), (C) Baseline Oil & Gas Corp. (formerly known as College Oak
Investments, Inc.), a Nevada corporation (the "Buyer" or "Baseline"), and (D)
Barrie Damson ("Damson") and Alan Gaines ("Gaines"), both individuals residing
in the State of Connecticut. The Sellers and the Acquirers are sometimes
referred to hereinafter collectively as the "Shaner Parties." The Buyer, Damson
and Gaines are sometimes referred to hereinafter collectively as the "Baseline
Parties." Each of the Shaner Parties and each of the Baseline Parties are
sometimes referred to herein individually as a "Party" and collectively as the
"Parties."
WHEREAS, the Sellers and the Buyer entered into a Purchase Agreement dated
January 16, 2006 (the "Purchase Agreement") wherein the Sellers agreed to sell
their assets (and in the case of Shaner and Hulburt their shares in certain
entities) to Buyer for the cash and consideration described therein;
WHEREAS, the Acquirers, on the one hand, and the Buyer, Damson and Gaines,
on the other hand, entered into a Stock Agreement dated January 16, 2006 whereby
the parties agreed, among other things, that the Buyer would issue 12,069,250
shares of the Buyer's Common Stock to the Acquirers (the "Acquirers' Shares")
and that certain of the Acquirers would purchase additional shares of Buyer's
Common Stock simultaneously with the closing of the transactions contemplated by
the Purchase Agreement;
WHEREAS, the Acquirers, on the one hand, and the Buyer, Damson and Gaines,
on the other hand, entered into an Amendment to the Stock Agreement dated March
10, 2006 (the Stock Agreement dated January 16, 2006, as amended by the
Amendment to the Stock Agreement dated March 10, 2006, is hereinafter referred
to as the "Stock Agreement");
WHEREAS, the Sellers and the Acquirers, on the one hand, and the Buyer,
Damson and Gaines, on the other hand, are executing and delivering concurrently
herewith a Mutual Termination Agreement that terminates the Purchase Agreement
and the Stock Agreement and all obligations of the Parties thereunder (the
"Mutual Termination Agreement") and a Mutual Release Agreement (the "Mutual
Release Agreement"); and
WHEREAS, the Parties to this Agreement desire to refrain from making
critical, disparaging, defamatory or negative communications on certain subjects
as is more fully described in the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, and the receipt of such other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
1. Definitions.
(a) "Claims" means all existing, known and unknown claims, demands
and causes of action, pending or threatened, and asserted or unasserted, of any
of the Baseline Parties against any of the Shaner Parties or of any of the
Shaner Parties against any of the Baseline Parties for all existing, known and
unknown damages, injuries and remedies that arise or could arise out of or in
connection with the Controversies. Under this definition, the "Claims" includes,
but is not limited to, all claims, demands, lawsuits, debts, accounts,
covenants, agreements, actions, cross-actions, liabilities, obligations, losses,
costs, expenses, remedies and causes of action of any nature, whether in
contract or in tort, or based upon fraud or misrepresentation, breach of duty or
common law, or arising under or by virtue of any judicial decision, statute or
regulation, for past, present, known and unknown injuries, property or economic
damage, and all other losses and damages of any kind, including but not limited
to the following: all actual damages; all exemplary and punitive damages; all
penalties of any kind, including without limitation any tax liabilities or
penalties; damage to business reputation; lost profits or good will;
consequential damages; damages ensuing from loss of credit; and prejudgment and
postjudgment interest, costs and attorney's fees. This definition further
includes, but is not limited to, all elements of damages, all remedies, and all
claims, demands, and causes of action that are now recognized by law or that may
be created or recognized in the future in any manner, including, without
limitation, by statute, regulation or judicial decision, including, without
limitation, by virtue of any statute prohibiting deceptive trade practices.
(b) "Consideration" means and consists of the following:
(i) The execution, delivery and performance of the Mutual
Termination Agreement;
(ii) The execution, delivery and performance of the Mutual
Release Agreement, a copy of which is attached as Exhibit A to the Mutual
Termination Agreement; and
(iii) The bargained-for exchange by the Parties of the
promises, agreements, and representations set forth in this Mutual
Non-Disparagement Agreement.
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(c) "Controversies" means all disputes, differences, claims and
controversies between any of the Shaner Parties and any of the Baseline Parties
that have arisen or been asserted or that might have arisen or been asserted by
reason of or in connection with any action or omission or any alleged action or
omission or any fact or circumstance or alleged fact or circumstance occurring
or existing or alleged or that might have been alleged to have occurred or
existed at any time or times prior to the date of this Mutual Non-Disparagement
Agreement, including, but not limited to, the following:
(i) Any allegations, contentions, or claims, whether asserted
or not, arising out of or in any way relating to the business or activities of
any of the Shaner Parties or any of the Baseline Parties;
(ii) Any allegations, contentions, or claims, whether asserted
or not, arising out of or in any way relating to any actions or omissions of any
of the Shaner Parties or any of the Baseline Parties arising out of or in
connection with or in any way relating to the negotiation, execution or
performance of the Purchase Agreement or any of the transactions contemplated by
the Purchase Agreement;
(iii) Any allegations, contentions, or claims, whether
asserted or not, arising out of or in any way relating to any actions or
omissions of the Shaner Parties or the Baseline Parties arising out of or in
connection with or in any way relating to the efforts of the Buyer under the
Purchase Agreement to secure the Financing Amount that was contemplated under
the Purchase Agreement;
(iv) Any allegations, contentions, or claims, whether asserted
or not, arising out of or in any way relating to any actions or omissions of any
of the Shaner Parties or any of the Baseline Parties arising out of or in
connection with or in any way relating to the negotiation, execution or
performance of the Stock Agreement or any of the transactions contemplated by
the Stock Agreement; and
(v) Any allegations, contentions, or claims, whether asserted
or not, arising out of or in any way relating to any actions or omissions of any
of the Shaner Parties or any of the Baseline Parties arising out of or in
connection with or in any way relating to the negotiation, execution or
performance of the Team Energy Letter Of Intent or any of the transactions
contemplated by the Team Energy Letter Of Intent.
(d) "Team Energy Letter Of Intent" means that certain letter of
intent dated April 5, 2006, by and between Rex Energy Operating Corp. and Team
Energy, LLC.
2. Agreement.
(a) Subject to the provisions of Section 2(c), each of the Shaner
Parties agrees that it will refrain from criticizing, disparaging, defaming or
making any negative comments, statements or communications in any form, directly
or indirectly, whether oral, written or electronic, and whether related to the
Controversies or not, which would constitute libel, slander or disparagement of
any of the Baseline Parties (or any of their respective directors, officers,
managers, agents, representatives, employees or affiliates), or of any of their
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plans or actions, or that might reasonably be understood by an objective person
to adversely affect the personal or professional reputation of any of the
Baseline Parties (or any of their respective directors, officers, managers,
agents, representatives, employees or affiliates).
(b) Subject to the provisions of Section 2(c), each of the Baseline
Parties agrees that it will refrain from criticizing, disparaging, defaming or
making any negative comments, statements, or communications in any form,
directly or indirectly, whether oral, written or electronic, and whether related
to the Controversies or not, which would constitute libel, slander or
disparagement of any of the Shaner Parties (or any of their respective
directors, officers, managers, agents, representatives, employees or
affiliates), or of any of their plans or actions, or that might reasonably be
understood by an objective person to adversely affect the personal or
professional reputation of any of the Shaner Parties (or any of their respective
directors, officers, managers, agents, representatives employees or affiliates).
(c) Notwithstanding any other provision of this Agreement that might
be to the contrary, nothing in this Agreement shall be construed as creating any
obligation or any liability with regard to any truthful statement of fact that
may be made by any Party hereto, nor shall any provision of this Agreement be
construed to prohibit any Party hereto from complying with applicable law or
governmental regulation, including, without limitation, fully cooperating with
and responding to any governmental investigation or inquiry or any subpoena or
other discovery process in any litigation, whether civil or criminal in nature.
Each of the Parties that is a legal entity agrees that it shall cause its
respective directors, officers, managers, agents, representatives, employees or
affiliates to observe and not violate the agreements set forth in this Section 2
of this Agreement.
(d) The Shaner Parties and the Baseline Parties agree that in
response to inquiries regarding their contractual relationship with each other,
including the termination of the Purchase Agreement and the Stock Agreement, and
the Claims released in connection therewith, that they will only make public
statements the substance of which are consistent with the statements contained
in that certain Current Report on Form 8-K to be filed by Buyer with the SEC,
the form of which is attached to the Mutual Termination Agreement as Exhibt D.
The Shaner Parties and the Baseline Parties further agree that none of them, nor
any individual director, officer, manager, agent, representative or employee
will, directly or indirectly, make any other statement regarding their
contractual relationship with each other (including the termination of the
Purchase Agreement and the Stock Agreement, and the Claims released in
connection therewith), either publicly or privately, which is inconsistent with
the statements contained in such Form 8-K.
3. Representations And Warranties.
(a) For the Consideration, and as a material inducement for the
execution of this Mutual Non-Disparagement Agreement by the other Parties
hereto, the Shaner Parties represent and warrant the following to the Baseline
Parties:
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(i) Each of the Shaner Parties is correctly described in this
Agreement;
(ii) The Shaner Parties recognize that the recitations
contained in this Section 3(a) are contractual and not mere recitals;
(iii) Each signatory to this Agreement for and on behalf of
any of the Shaner Parties is fully authorized and legally competent to execute
this Agreement and is a duly authorized representative of such Shaner Party;
(iv) This Agreement is fully and forever binding on the Shaner
Parties and their legal representatives, heirs, successors and assigns;
(v) Before executing this Agreement, the Shaner Parties became
fully informed of the terms, contents, conditions and legal effect of this
Agreement;
(vi) Before executing this Agreement, each signatory for any
of the Shaner Parties fully informed himself and the officers and directors of
such Shaner Party of the terms, contents, conditions and legal effect of this
Agreement;
(vii) In entering into this Agreement, the Shaner Parties have
had the benefit of the advice of lawyers of their own choosing, and the Shaner
Parties enter this Agreement freely, by the Shaner Parties' own choice and
judgment, and without duress or other influence;
(viii) In entering into this Agreement, no promise or
statement or representation of any kind, other than as may be expressly stated
in this Agreement, or in the Mutual Termination Agreement or the Mutual Release
Agreement, has been made to any of the Shaner Parties by anyone acting for any
of the other Parties to this Agreement; and
(ix) In entering into this Agreement, none of the Shaner
Parties is relying upon any promise or statement or representation of any kind
that is not expressly stated in this Agreement, or the Mutual Termination
Agreement or the Mutual Release Agreement, that has been made to any of the
Shaner Parties by anyone acting for any of the other Parties to this Agreement,
and each of the Shaner Parties is entering into this Agreement relying on his or
its own judgment after having had an opportunity to investigate and having
obtained all information desired by him or it regarding all material facts and
after having had the benefit of being represented by legal counsel of his or its
own choosing.
(b) For the Consideration, and as a material inducement for the
execution of this Mutual Non-Disparagement Agreement by the other Parties
hereto, the Baseline Parties represent and warrant the following to the Shaner
Parties:
(i) Each of the Baseline Parties is correctly described in
this Agreement;
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(ii) The Baseline Parties recognize that the recitations
contained in this Section 3(b) are contractual and not mere recitals;
(iii) Each signatory to this Agreement for and on behalf of
any of the Baseline Parties is fully authorized and legally competent to execute
this Agreement and is a duly authorized representative of such Baseline Party;
(iv) This Agreement is fully and forever binding on the
Baseline Parties and their legal representatives, heirs, successors and assigns;
(v) Before executing this Agreement, the Baseline Parties
became fully informed of the terms, contents, conditions and legal effect of
this Agreement;
(vi) Before executing this Agreement, each signatory for any
of the Baseline Parties fully informed himself and the officers and directors of
such Baseline Party of the terms, contents, conditions and legal effect of this
Agreement;
(vii) In entering into this Agreement, the Baseline Parties
have had the benefit of the advice of lawyers of their own choosing, and the
Baseline Parties enter this Agreement freely, by the Baseline Parties' own
choice and judgment, and without duress or other influence;
(viii) In entering into this Agreement, no promise or
statement or representation of any kind, other than as may be expressly stated
in this Agreement, or the Mutual Termination Agreement or the Mutual Release
Agreement, has been made to any of the Baseline Parties by anyone acting for any
of the other Parties to this Agreement; and
(ix) In entering into this Agreement, none of the Baseline
Parties is relying upon any promise or statement or representation of any kind
that is not expressly stated in this Agreement, or the Mutual Termination
Agreement or the Mutual Release Agreement, that has been made to any of the
Baseline Parties by anyone acting for any of the other Parties to this
Agreement, and each of the Baseline Parties is entering into this Agreement
relying on his or its own judgment after having had an opportunity to
investigate and having obtained all information desired by him or it regarding
all material facts and after having had the benefit of being represented by
legal counsel of his or its own choosing.
4. Miscellaneous.
(a) This Agreement, together with the Mutual Termination Agreement
and the Mutual Release Agreement, constitute the entire agreement between and
among the Parties regarding the subject matters covered therein and supersede
all prior agreements or understandings, whether written or oral, between or
among any of the Parties regarding those matters.
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(b) This Agreement shall be governed by and construed in accordance
with the domestic laws of the Commonwealth of Pennsylvania without giving effect
to any choice or conflict of law provision or rule (whether of the Commonwealth
of Pennsylvania or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the Commonwealth of Pennsylvania.
(c) Each of the parties to this Agreement hereby (1) consents to the
jurisdiction of any United States District Court for the Western District of
Pennsylvania or, if such court does not have jurisdiction over such matter, the
Court of Common Pleas of the Commonwealth of Pennsylvania of Centre County and
(2) irrevocably agrees that all actions or proceedings arising out of or
relating to this Agreement shall be litigated in such court. Each party accepts
for itself and in connection with its properties, generally and unconditionally,
the exclusive jurisdiction and venue of the aforesaid courts and waives any
defense of forum nonconveniens or any similar defense, and irrevocably agrees to
be bound by any non-appealable judgment rendered thereby in connection with this
Agreement.
(d) No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by all Parties to this Agreement.
No waiver by any Party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(e) Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
(f) The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation. All references in this Agreement to a
"Section," "subsection," "Exhibit" or "Schedule" shall be to a Section,
subsection, Exhibit or Schedule of this Agreement, as the case may be, unless
the context requires otherwise. Unless the context otherwise requires, the words
"this Agreement," "hereof," "hereunder," "herein," "hereby," or words of similar
import shall refer to this Agreement as a whole and not to a particular Section,
subsection, clause or other subdivision hereof. Whenever the context requires,
the words used herein shall include the masculine, feminine and neuter gender,
and the singular and the plural.
(g) This Agreement is intended for the benefit of the Parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other person.
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(h) This Agreement is being executed in multiple counterparts, and
each counterpart that is executed by any Party shall be deemed an original, with
all such counterparts to constitute one Agreement. It shall not be necessary
that any single counterpart hereof be executed by all the Parties, and this
Agreement shall be and become effective when each Party has executed some
counterpart hereof, whether the same or different than any counterpart executed
by any other Party or Parties.
(i) The Parties agree and stipulate that this Agreement is not
intended by them, nor is it to be interpreted in any way as an admission of any
liability, fault, or responsibility by any Party, and each of the Parties
expressly deny any and all such alleged liability, fault, or responsibility.
[Signatures Follow.]
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IN WITNESS WHEREOF, the Parties hereto have executed this Mutual
Non-Disparagement Agreement as of the date first above written.
BUYER:
BASELINE OIL & GAS CORP.
By: /s/ Barrie Damson
---------------------
Name: Barrie Damson
Title: Chairman & CEO
BARRIE DAMSON
/s/ Barrie Damson
- -------------------------
Barrie Damson
ALAN GAINES
/s/ Alan Gaines
- -------------------------
Alan Gaines
SELLERS:
REX ENERGY ROYALTIES LIMITED PARTNERSHIP
By: Douglas Oil & Gas Limited Partnership, its general partner
By: Rex Energy LLC, its general partner
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
PENNTEX RESOURCES, L.P.
By: Penn Tex Energy, Inc., its general partner
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
PENNTEX RESOURCES ILLINOIS, INC.
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
DOUGLAS OIL & GAS LIMITED PARTNERSHIP
By: Rex Energy LLC, its general partner
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
DOUGLAS WESTMORELAND LIMITED PARTNERSHIP
By: Rex Energy LLC, its general partner
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
MIDLAND EXPLORATION LIMITED PARTNERSHIP
By: Douglas Oil & Gas Limited Partnership, its general partner
By: Rex Energy LLC, its general partner
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
REX ENERGY OPERATING CORP.
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
REX ENERGY WABASH, LLC
By: /s/ Lance T. Shaner
---------------------
Name: Lance T. Shaner
Title: Chairman
LANCE T. SHANER
/s/ Lance T. Shaner
- -------------------------
Lance T. Shaner
BENJAMIN W. HULBURT
/s/ Benjamin W. Hulburt
- -------------------------
Benjamin W. Hulburt
ACQUIRERS:
LANCE T. SHANER
/s/ Lance T. Shaner
- -------------------------
Lance T. Shaner
BENJAMIN W. HULBURT
/s/ Benjamin W. Hulburt
- -------------------------
Benjamin W. Hulburt
THOMAS F. SHIELDS
/s/ Thomas F. Shields
- -------------------------
Thomas F. Shields
MICHAEL S. CARLSON
/s/ Michael S. Carlson
- -------------------------
Michael S. Carlson
CHRISTOPHER K. HULBURT
/s/ Christopher K. Hulburt
- --------------------------
Christopher K. Hulburt
THOMAS C. STABLEY
/s/ Thomas C. Stabley
- -------------------------
Thomas C. Stabley