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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
EXCO Resources, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
269279 10 5
------------------------------
(CUSIP Number)
William L. Boeing
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
(214) 651-5553
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 19, 1997
------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
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CUSIP No. 269279 10 5 Page 2 of 5 Pages
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<TABLE>
<CAPTION>
<S> <C> <C>
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Douglas H. Miller / ###-##-####
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_|
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
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SOLE VOTING POWER
7
Douglas H. Miller - 413,423(1) (2)
NUMBER OF ----------------------------------------------------------------------------------------------------------
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 0
EACH ----------------------------------------------------------------------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH Douglas H. Miller - 413,423(1) (2)
----------------------------------------------------------------------------------------------------------
SHARED DISPOSITIVE POWER
10
0
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
Douglas H. Miller - 413,423(1) (2)
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
12
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
Douglas H. Miller - 51.3% (voting, dispositive)(1) (2)
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TYPE OF REPORTING PERSON*
14
Douglas H. Miller - IN
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</TABLE>
(1) The Reporting Person exercised the right under Stock Option Agreements
with various holders of outstanding Common Stock and acquired the shares
reported herein.
(2) The number reported does not include 2,000 shares of Common Stock owned
by The Miller's Children's Trust, a Trust created by the Reporting
Person. The Reporting Person is not the Trustee nor a beneficiary of The
Miller's Children's Trust.
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The Schedule 13-D, dated December 9, 1997 and filed December 18, 1997
(the "Schedule 13D") of Douglas H. Miller relating to the Common Stock of EXCO
Resources, Inc., a Texas corporation, is hereby amended as set forth below.
Initially capitalized terms used but not defined herein have the meanings
ascribed to them in the Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended by the addition of the following
paragraph:
"Douglas H. Miller acquired 413,423 shares of Common Stock
on December 19, 1997 for an aggregate purchase price of
$1,240,269. The 413,423 shares were purchased with personal
funds."
Item 4. Purpose of the Transaction.
Item 4 is hereby amended by the addition of the following
paragraph:
On December 19, 1997, after acquiring 413,423 shares of Common
Stock, Mr. Miller was elected to the Board of Directors as
Chairman of the Board. He was also appointed Chief Executive
Officer. Mr. Ted Eubank was also elected to the Board of
Directors and was appointed President and Chief Financial
Officer. One vacancy remains on the Board and Mr. Miller intends
to fill it with a designee as soon as possible.
Item 5. Interest in Securities of the Issuer.
Item 5 here hereby replaced with the following:
(a) and (b): See Items 7 through 11 on the cover page of this Amendment No. 1
to Schedule 13D.
(c) The only transaction in the shares of Common Stock by Mr.
Miller since the date of the filing of the Schedule 13D was
the purchase of 413,423 shares of Common Stock of the Company
for a purchase price of $3.00 per share in connection with
the exercise of his options pursuant to Stock Option
Agreements with various shareholders of EXCO Resources, Inc.
Mr. Miller exercised his options December 18, 1997 and
acquired the shares December 19, 1997.
(d) Not applicable.
(e) Not applicable.
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Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
None.
Item 7. Material to be Filed as Exhibits.
Item 7 is to be amended by adding the following Exhibit:
Securities Purchase Agreement dated December 19, 1997 among Douglas
H. Miller, on the one hand, and the undersigned shareholders of EXCO
Resources, Inc. listed on Schedule A thereto, on the other.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: December 19, 1997
/s/ Douglas H. Miller
--------------------------------------
DOUGLAS H. MILLER
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
99.B Securities Purchase Agreement
<PAGE> 1
EXHIBIT 99.B
EXHIBIT B
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of December 19, 1997 (the
"AGREEMENT"), is entered into by and among Douglas H. Miller, a resident of
Dallas, Texas ("MILLER"), on the one hand, and the undersigned shareholders of
Exco Resources, Inc., a Texas corporation, listed on Schedule A attached hereto
(each a "SCHEDULE A HOLDER" and, collectively, the "SCHEDULE A HOLDERS") on the
other hand.
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated:
"ACTION" against a Person means any lawsuit, action, proceeding,
investigation or complaint before any Governmental Authority, mediator or
arbitrator.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITAL STOCK" of any Corporation means any and all shares,
interests, participations or other equivalents (however designated) of, or
rights, warrants or options to purchase, corporate stock or any other equity
interest (however designated) of or in such Corporation.
"CLOSING" refers to the purchase and sale of the Securities held at
the offices of Haynes and Boone, L.L.P., 901 Main Street, Suite 3100, Dallas,
Texas, at 5:00 p.m., Dallas time, on December 19, 1997.
"COMMISSION" means the United States Securities and Exchange
Commission.
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"COMMON STOCK" has the meaning specified therefor in Section 3.03 of
this Agreement.
"COMPANY" means Exco Resources, Inc. a Texas corporation.
"CORPORATION" means any corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, business trust, trust or unincorporated organization.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" means generally
accepted accounting principles in the United States, as applied on a consistent
basis.
"GOVERNMENTAL AUTHORITY" means any (domestic or foreign) federal,
native American Indian, state, province, county, city, municipal or other
political subdivision or government, department, commission, board, bureau,
court, agency or any other instrumentality of any of them, which exercises
jurisdiction over the Schedule A Holders, the Company, any of its Subsidiaries,
or any of their respective property.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in Dallas, Texas are not required to be open for business.
"LIEN" means any mortgage, charge, pledge, lien, security interest or
encumbrance of any kind.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on the
assets or properties, liabilities, financial condition, business, operations or
future business prospects of a Person, or any material impairment of the
ability of a Person to carry on its business as it exists on the date of this
Agreement or proposed at the date of this Agreement to be conducted or to
perform on a timely basis its obligations under this Agreement or any document
or agreement relating to this transaction to which it is a party.
"MILLER" has the meaning provided therefor in the Preamble to this
Agreement.
"PERSON" means any individual, Corporation or Governmental Authority.
"SCHEDULE A HOLDER" or "SCHEDULE A HOLDERS" has the meaning provided
therefor in the Preamble to this Agreement.
"SECURITIES" means the shares of Common Stock the Schedule A Holders
have agreed to sell to Miller pursuant to the Stock Option Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Commission promulgated
thereunder.
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"STATE" means each of the states of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"STOCK OPTION AGREEMENT" means that certain Stock Option Agreement
among Miller, the Schedule A Holders and certain other holders of Common Stock
referenced on Schedule B to said Stock Option Agreement.
"SUBSIDIARY" of any Person means any Corporation of which at the time
of determination such Person, directly and/or indirectly through one or more
other Persons, owns more than 50% of the voting interests.
Section 1.02 Accounting Terms. All accounting terms used herein not
expressly defined in this Agreement shall have the respective meanings given to
them in accordance with GAAP.
ARTICLE II
SALE OF SECURITIES
Section 2.01 Sale of Securities. Subject to the terms and conditions
herein set forth and in the Stock Option Agreement, the Schedule A Holders
agree to sell to Miller and Miller agrees that he will purchase from the
Schedule A Holders the Securities. This Agreement is being executed pursuant to
Section 3(c) of the Stock Option Agreement and is intended to supplement, but
in no way supersede, the Stock Option Agreement.
Section 2.02 Delivery. The delivery of the Securities pursuant to this
Agreement and the Stock Option Agreement shall be made contemporaneously with
the execution of this Agreement at the Closing. Each Schedule A Holder shall
deliver to Miller, against payment therefor as provided in the Stock Option
Agreement, one or more certificates representing the Securities owned by the
Schedule A Holder purchased by Miller duly executed in blank or accompanied by
duly executed stock powers, with signatures guaranteed.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SCHEDULE A HOLDERS
As an inducement to Miller to exercise the option granted by each
Schedule A Holder set forth in the Stock Option Agreement, and Miller being
entitled to rely upon the representations and warranties set forth herein in
consummating his purchase of the Securities, the Schedule A Holders do hereby
represent and warrant to Miller as follows:
Section 3.01 Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas. Each of the Company's Subsidiaries that is a corporation is a
corporation duly organized, validly existing and in good standing under the
laws
3
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of the State or other jurisdiction of its incorporation. Each of the Company
and each of its Subsidiaries that is a corporation is duly qualified or
licensed and in good standing as a foreign corporation, and is authorized to do
business, in each jurisdiction in which the ownership or leasing of its
respective properties or the character of its respective operations makes such
qualification necessary, except where the failure to obtain such qualification,
license, authorization or good standing would not have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole. Each Subsidiary
of the Company that is not a corporation is duly qualified or licensed and
authorized to do business in each jurisdiction in which the ownership or
leasing of its respective properties or the character of its respective
operations makes such qualification necessary, except where the failure to
obtain such qualification, license or authorization would not have a Material
Adverse Effect on the Company and its Subsidiaries, taken as a whole.
Section 3.02 Capitalization.
a. As of the date of this Agreement, the authorized Capital
Stock of the Company consists of: 25,000,000 shares of Common Stock, par value
$.01 per share (the "COMMON STOCK") and 10,000,000 shares of preferred stock,
par value $.01 per share (the "PREFERRED STOCK"). As of the date hereof, the
issued and outstanding Common Stock of the Company consisted of 805,300
outstanding shares of Common Stock and no shares of Common Stock held in the
treasury of the Company. No shares of Preferred Stock are outstanding. All
outstanding shares of Common Stock are validly issued, fully paid and
nonassessable and were issued free of preemptive rights and all shares of
Capital stock that have been issued since December 9, 1994, have been issued in
compliance with the Securities Act and applicable State securities laws. The
Schedule A Holders are not a party to any voting trust or other agreement or
understanding with respect to the voting of their Capital Stock. The Schedule A
Holders are not a party to or bound by any agreement with respect to any of
their securities which grant registration rights to any Person.
b. There are no authorized or outstanding rights, options,
warrants, interests, participations, convertible instruments (including, but
not limited to, convertible debt instruments) or other equivalents (however
designated) to purchase or otherwise acquire any Capital Stock of the Company
other than the Mineral Development, Inc. Stock Option Plan, as amended.
Section 3.03 Subsidiary Capital Stock. There are no Subsidiaries of
the Company other than Taurus Acquisition, Inc., a Delaware corporation. All of
the issued and outstanding shares of Capital Stock of the Subsidiaries of the
Company have been duly and validly authorized and issued and are fully paid and
nonassessable, and such shares were not issued in violation of any preemptive
right and are owned by the Company or one of its Subsidiaries free and clear of
any Lien. There are no outstanding warrants, options or other rights to
purchase or acquire any of the shares of Capital Stock of any Subsidiary of the
Company, nor any outstanding securities convertible into such shares or
outstanding warrants, options or other rights to acquire any such convertible
securities.
Section 3.04 Litigation, Proceedings, etc. There is no Action pending
or, to the knowledge of the Schedule A Holders, contemplated or threatened
against or affecting the Schedule A Holders, the Company, any of its
Subsidiaries or any of the Company's or Subsidiaries' respective officers,
directors, properties or assets, which relates to or challenges the legality,
validity or enforceability of this Agreement, any other documents or agreements
executed or to be executed by the Schedule A
4
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Holders pursuant hereto or related to this transaction or in connection
herewith, or which (individually or in the aggregate) reasonably could be
expected to (a) have a Material Adverse Effect on the Company or any Subsidiary
or (b) impair the ability or obligation of the Schedule A Holders to perform
fully on a timely basis any obligations which it has or will have under this
Agreement or any document or agreement in connection herewith.
Section 3.05 Financial Statements; Reserve Report.
a. The audited consolidated balance sheets of the Company as
of December 31, 1995 and 1996 and the related audited statements of operations,
cash flows and changes in stockholders' equity for the year ended March 31,
1995, nine months ended December 31, 1995 and year ended December 31, 1996 and
the unaudited consolidated financial statements and the related notes of the
Company and its Subsidiaries as of and for the three and nine month periods
ended September 30, 1997, copies of which have been delivered to Miller, have
been prepared in conformity with GAAP applied on a consistent basis throughout
the periods involved except as disclosed therein, and fairly present in all
material respects the consolidated financial position, results of operations
and cash flows of the Company and its Subsidiaries as of the dates and
throughout the periods therein specified.
b. The Company has delivered to Miller a copy of the reserve
report prepared as of December 31, 1996 by Lee Keeling and Associates, Inc.,
independent petroleum engineers (the "KEELING REPORT"), relating to the oil and
gas reserves attributable to properties owned by the Company. The estimates of
the lease operating expenses in the Keeling Report are, as of the dates such
estimates were made, reasonable and the historical factual information supplied
by the Company to the independent engineering firm in connection with the
preparation of the Keeling Report was accurate and complete in all material
respects. No developments have occurred since the date of the Keeling Report
that would cause there to be a material adverse variance in such report other
than market fluctuations in commodity prices routine production of oil and
natural gas, general increases in costs, general economic conditions and
variances in the interests owned by the Company in the Smith No. 2 well (the
"SMITH NO. 2 WELL") in DeSoto Parish, Louisiana and the Armstrong well (the
"ARMSTRONG WELL") in Reeves County, Texas.
c. The Company has delivered to Miller a copy of the
"rollforward" reserve report prepared as of December 1, 1997 by Lee Keeling and
Associates, Inc. (the "ROLLFORWARD REPORT"), relating to the Company's oil and
gas reserves. Such report reflects a "rollforward" of the Keeling Report (i)
using prices specified by Miller, (ii) adjusting the Keeling Report for
production and sales of the Company's interest in proved reserves since
December 31, 1996 and (iii) as to the Smith No. 2 well and the Armstrong well,
using ownership interests specified by Miller. The information supplied by the
Company to Lee Keeling and Associates, Inc. in connection with the preparation
of the Rollforward Report was accurate and complete in all material respects.
No developments have occurred since the date of the Rollforward Report that
would cause there to be a material adverse variance in such report other than
market fluctuations in commodity prices, routine production of oil and natural
gas, general increases in costs, general economic conditions and variances in
the interests owned by the Company in the Smith No. 2 well and the Armstrong
well.
5
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Section 3.06 Filings with the Commission. The Company's Annual Report
on Form 10-K for the period ended December 31, 1996, its Quarterly Reports on
Form 10-Q for the periods ended March 31, 1997, June 30, 1997 and September 30,
1997, any current reports on Form 8-K filed since December 31, 1996, and the
Company's proxy solicitation materials filed with the Commission pursuant to
Regulation 14(A) in respect of the Company's 1996 Annual Meeting of
Shareholders, as of their respective filing dates, complied in all material
respects, both as to form and content, with all applicable requirements of the
Exchange Act and the rules and regulations thereunder and did not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. Since December 9, 1994 the Company
has made all filings required to be made by it with the Commission pursuant to
Sections 12, 13, 14 and 15 of the Exchange Act. All of such filings, and all
filings made by the Company with the Commission pursuant to such sections,
rules and regulations although not required to be made, complied in all
material respects, as to both form and content, with all applicable
requirements of the Exchange Act and the rules and regulations thereunder, and,
at the time of filing, did not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading.
Section 3.07 No Material Misstatements. The financial statements and
other related financial data (excluding all projections and pro forma financial
data) and reserve reports furnished to Miller by or at the direction of the
Schedule A Holders in connection with the negotiation of this Agreement do not
contain any material misstatement of fact and, when considered with all other
written statements furnished by the Schedule A Holders to Miller in that
connection, such financial statements, related financial data (excluding all
projections and pro forma financial data) and reserve reports do not omit to
state a material fact or any fact necessary to make the statement contained
therein not misleading. The circumstances and events that are not required to
be identified on schedules to this Agreement by reason of the materiality
qualifications contained in the representations and warranties in this Article
III, or which are otherwise within such qualifications, in the aggregate do not
have, and could not reasonably be expected to have, a Material Adverse Effect
on the Schedule A Holders or the Company, taken as a whole.
Section 3.08 No Material Adverse Effect. Subsequent to September 30,
1997, there has been (a) (i) no Material Adverse Effect in respect of the
Company and (ii) no development which the Company reasonably believes could
have (individually or in the aggregate) a Material Adverse Effect on the
Company, (b) no material obligation or other material liability (contingent or
other) incurred by the Company or any of its Subsidiaries other than
obligations and other liabilities incurred in the ordinary course of business,
(c) no Lien placed on any of the properties of the Company or any of its
Subsidiaries which remains in existence on the date hereof and (d) no
acquisition or disposition of any material asset by the Company or any of its
Subsidiaries or any contract or arrangement therefor, otherwise than for fair
value in the ordinary course of business.
Section 3.09 Director Resignations. Messrs. Dick Collins, William R.
Granberry and Glenn Seitz have resigned from the Company's Board of Directors
effective December 19, 1997.
6
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MILLER
Section 4.01 Investment. Miller represents and warrants to, and
covenants and agrees with, the Schedule A Holders that the Securities are being
acquired for his own account and with no intention of distributing or reselling
the Securities in any transaction in violation of the securities laws of the
United States of America or any State, without prejudice, however, to Miller's
right at all times to sell or otherwise dispose of all or any part of the
Securities under a registration statement under the Securities Act and
applicable State securities laws or under an exemption from such registration
available thereunder. If Miller should in the future decide to dispose of any
of the Securities, Miller understands and agrees that he may do so only (a) in
compliance with the Securities Act and applicable State securities law, as then
in effect, and (b) in the manner contemplated by any registration statement
pursuant to which such securities are being offered.
Section 4.02 Nature of Miller. Miller represents and warrants to, and
covenants and agrees with, the Schedule A Holders that, (a) he is an
"accredited investor" within the meaning of paragraph (a)(5) of Rule 501 under
the Securities Act and (b) by reason of his business and financial experience
he has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Securities, is able to bear the economic risk of
such investment and, at the present time, would be able to afford a complete
loss of such investment.
Section 4.03 Receipt of Information; Authorization. Miller represents
and warrants to the Schedule A Holders that (a) he has received and reviewed
sufficient information to enable Miller to make an informed decision with
respect to his investment in the Securities; and (b) this Agreement has been
duly executed and delivered by him.
Section 4.04 Knowledge of Conflicts. Prior to the execution of this
Agreement, Miller has been afforded the opportunity to inspect and examine the
records of the Company at the Company's office. To the extent Miller has actual
knowledge of any fact, circumstance or event that conflicts materially with any
of the representations and warranties of the Schedule A Holders herein, such
conflict have been brought to the attention of one or more of the Schedule A
Holders.
ARTICLE V
POST-CLOSING AGREEMENTS
After the Closing, the Schedule A Holders, on the one hand, and Miller
on the other hand, covenant and agree as follows:
Section 5.01 Further Actions. The Schedule A Holders shall execute and
deliver at their own expense, such further instruments of transfer and
conveyance, documents and certificates as may be reasonably requested by Miller
in order to more effectively convey and transfer to Miller the Securities, to
aid and assist in reducing to possession or exercising rights with respect to
the Securities, or to consummate any of the transactions contemplated by this
Agreement.
7
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ARTICLE VI
MISCELLANEOUS
Section 6.01 Survival of Provisions. The representations, warranties
and covenants made herein and in any certificates delivered by the Schedule A
Holders pursuant to this Agreement shall remain operative and in full force and
effect for a period of two years from the date of this Agreement regardless of
(a) any investigation made by or on behalf of the Schedule A Holders or Miller
or (b) acceptance of any of the Securities and payment therefor and repayment
or repurchase thereof.
Section 6.02 No Waiver; Modifications in Writing. No failure or delay
on the part of the Schedule A Holders or Miller in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any right, power or remedy. Except
as otherwise provided herein, no amendment, waiver, consent, modification or
termination of any provision of this Agreement shall be effective unless signed
by the Schedule A Holders and by or on behalf of Miller. Any amendment,
supplement or modification of or to any provision of this Agreement, any waiver
of any provision of this Agreement, and any consent to any departure by the
Schedule A Holders from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this Agreement,
no notice to or demand on the Schedule A Holders in any case shall entitle the
Schedule A Holders to any other or further notice or demand in similar or other
circumstances.
Section 6.03 Entire Agreement. Notwithstanding the following, this
Agreement (including the Schedules hereto) supplements but does not supersede
the Stock Option Agreement. This Agreement and the Stock Option Agreement
(including other documents and instruments referred to herein or therein) (i)
constitute the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (ii) are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a governmental entity to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 6.04 Communications. All notices and other communications
provided for hereunder shall be in writing, and if to Miller, shall be given by
telecopy (confirmed by overnight courier), air courier guaranteeing overnight
delivery, registered or certified mail (return receipt requested) or personal
delivery, to Miller, to the following address:
7611 Glenshannon Circle
Dallas, Texas 75225
Telecopier: (214) 361-4120
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with a copy to:
Haynes and Boone, L.L.P.
901 Main Street
Suite 3100
Dallas, Texas 75202
Attention: William L. Boeing
Telecopier: (214) 651-5940
and, if to the Schedule A Holders:
The addresses set forth under their respective names on Schedule A
or to such other address as the Schedule A Holders or Miller may designate in
writing. All such notices and communications and all notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; when receipt acknowledged, if telecopied; and on the next
Business Day if timely delivered to an air courier guaranteeing overnight
delivery.
Section 6.05 Determinations. Except as otherwise provided herein, all
determinations to be made by the Schedule A Holders or Miller hereunder in
their opinion or judgment or with their approval or otherwise shall be made by
them in their sole discretion.
Section 6.06 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same Agreement.
Section 6.07 Binding Effect; Assignment. This Agreement shall be
binding upon the Schedule A Holders and Miller, and their respective successors
and permitted assigns. Except as expressly provided in this Agreement, this
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement, and their respective
successors and permitted assigns. Except as set forth herein, no party to this
Agreement may assign rights and obligations under this Agreement to any other
Person without the prior written consent of the other parties; provided,
however, Miller may assign any or all of his rights, privileges and obligations
hereunder to any direct or indirect Affiliate without the consent of any other
party hereto.
Section 6.08 Public Announcements. The parties to this Agreement shall
consult with each other regarding any public announcement or statement with
respect to this Agreement or the transactions contemplated hereby and no party
shall issue any public announcement or other statement with respect to the
existence of this Agreement or the transactions contemplated hereby without the
prior consent, which shall not be withheld unreasonably, of the other parties,
unless required by applicable law or regulation or order of a court of
competent jurisdiction.
Section 6.09 Governing Law. The laws of the State of Texas will govern
this Agreement without regard to any applicable conflicts of laws.
9
<PAGE> 10
Section 6.10 Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 6.11 Headings; Gender. The Article and Section headings used
or contained in this Agreement are for convenience of reference only and shall
not affect the construction of this Agreement. Whenever required by the context
of this Agreement, the singular shall mean the plural and the male gender shall
include the female gender and the neuter, and vice-versa.
Section 6.12 Expenses. Unless otherwise indicated, each of the parties
will bear and pay his own costs and expenses incurred in connection with the
negotiation, preparation and execution of this Agreement and the consummation
of the transactions contemplated hereby, including, without limitation, those
incident to the preparation of this Agreement and other agreements in
connection with this transaction, the actions taken incident to consummation of
this Agreement, and the fees and disbursements of counsel or financial
advisors, accountants and consultants employed by or on behalf of them in
connection with the actions contemplated by this Agreement.
Section 6.13 Replacement Securities. Upon receipt of evidence
satisfactory to the Schedule A Holders of the loss, theft, destruction or
mutilation of any Certificate representing Securities and, in the case of any
such loss, theft or destruction, upon delivery of any unsecured letter of
indemnity to the Schedule A Holders (or if required by the Schedule A Holders,
a customary indemnity bond) or, in the case of any such mutilation, upon
surrender or cancellation thereof, the Schedule A Holders will issue a new
Certificate representing Securities.
10
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto execute this
Agreement, effective as of the date first above written.
MILLER:
/s/ Douglas H. Miller
--------------------------------------------
Douglas H. Miller
11
<PAGE> 12
The undersigned Shareholder does hereby execute this counterpart
signature page.
/s/ Glenn L. Seitz
--------------------------------------
Name: GLENN L. SEITZ
/s/ David N. Fitzgerald
--------------------------------------
Name: DAVID N. FITZGERALD
/s/ David N. Fitzgerald
--------------------------------------
Name: DAVID N. FITZGERALD, President
DAVE FITZGERALD INC.
/s/ Frances C. Fitzgerald
--------------------------------------
Name: FRANCES C. FITZGERALD
/s/ Richard D. Collins
--------------------------------------
Name: RICHARD D. COLLINS
/s/ W. R. Granberry
--------------------------------------
Name: W. R. GRANBERRY
12
<PAGE> 13
SCHEDULE A
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF SHAREHOLDER CERTIFICATE NO. NO. OF EXCO SHARES OWNED
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
Richard D. Collins 2273 13,197
4406 Airport Freeway 2274 20,000
Fort Worth, Texas 76117 ------
33,197
- ----------------------------------------------------------------------------------------------------
Dave Fitzgerald, Inc.
P.O. Box 13537 2278 20,425
Odessa, Texas 79768-3537
- ----------------------------------------------------------------------------------------------------
David N. Fitzgerald 2281 69,317
P.O. Box 13537 2282 20,000
Odessa, Texas 79768-3537 2283 20,000
-------
109,317
- ----------------------------------------------------------------------------------------------------
Francis C. Fitzgerald
P.O. Box 13537 2267 9,125
Odessa, Texas 79768-3537
- ----------------------------------------------------------------------------------------------------
W. R. Granberry 1853 40,000
#10 Oaklawn Park 2391 40,000
Midland, Texas 79705 ------
80,000
- ----------------------------------------------------------------------------------------------------
Glenn L. Seitz 1325 1,525
4321 Concho 1328 20,000
Dallas, Texas 75206 1712 40,000
1799 214
1963 10,000
------
71,739
- ---------------------------------------------------------------------------------------------------
TOTAL: 323,803
=======
- ---------------------------------------------------------------------------------------------------
</TABLE>
13
