EXHIBIT E-2
PRINCIPAL SHAREHOLDERS AGREEMENT
CONTAINING A VOTING AGREEMENT AND AN IRREVOCABLE PROXY
(AS AMENDED AND RESTATED)
BY AND AMONG
DEVON ENERGY CORPORATION
XXXXXX X. XXXXXXXX
AND
XXXXXXX XXXXX XXXXXXXX
Dated as of August 13, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................2
Section 1.1 Definitions.......................................................................2
ARTICLE II VOTING AGREEMENT AND IRREVOCABLE PROXY.....................................................2
Section 2.1 Agreement to Vote the Subject Shares..............................................2
Section 2.2 Grant of Irrevocable Proxy........................................................3
Section 2.3 Nature of Irrevocable Proxy.......................................................3
Section 2.4 Legend............................................................................3
ARTICLE III COVENANTS..................................................................................3
Section 3.1 Generally.........................................................................3
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS.............................................4
Section 4.1 Due Authority.....................................................................4
Section 4.2 Ownership of Shares...............................................................4
Section 4.3 No Conflicts......................................................................4
Section 4.4 Title to Purchased Shares.........................................................4
Section 4.5 Reliance by Parent................................................................4
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT...................................................5
Section 5.1 Due Organization, etc.............................................................5
Section 5.2 Conflicts.........................................................................5
Section 5.3 Reliance by Shareholder...........................................................5
ARTICLE VI MISCELLANEOUS..............................................................................5
Section 6.1 Shareholder Capacity..............................................................5
Section 6.2 Publication.......................................................................5
Section 6.3 Further Actions...................................................................6
Section 6.4 Entire Agreement..................................................................6
Section 6.5 Binding Effect; Benefit; Assignment...............................................6
Section 6.6 Amendments, Waivers, etc..........................................................6
Section 6.7 Notices...........................................................................6
Section 6.8 Specific Enforcement..............................................................7
Section 6.9 Remedies Cumulative...............................................................7
Section 6.10 No Waiver.........................................................................7
-i-
TABLE OF CONTENTS
(continued)
PAGE
Section 6.11 Governing Law; Jurisdiction; Waiver of Jury Trial.................................7
Section 6.12 Headings..........................................................................8
Section 6.13 Counterparts; Facsimiles..........................................................8
Section 6.14 Termination.......................................................................8
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PRINCIPAL SHAREHOLDERS AGREEMENT
(AS AMENDED AND RESTATED)
This PRINCIPAL SHAREHOLDERS AGREEMENT, as amended and restated (this
"Agreement"), dated as of August 13, 2001, by and among Devon Energy
Corporation, a Delaware corporation ("Parent"), Xxxxxx X. Xxxxxxxx and Xxxxxxx
Xxxxx Xxxxxxxx each being shareholders (each, a "Shareholder") of Xxxxxxxx
Energy & Development Corp., a Texas corporation (the "Company").
WITNESSETH:
WHEREAS, this Agreement (entered into as of October 5, 2001) amends and
restates in its entirety the Principal Shareholders Agreement, dated as of
August 13, 2001 (which shall be deemed to be the date of this Agreement), by and
among Parent and the Shareholders;
WHEREAS, Parent, Devon NewCo Corporation, a Delaware corporation and a
wholly owned subsidiary of Parent, and the Company are parties to an Agreement
and Plan of Merger dated as of the date hereof and, together with certain other
parties, propose to enter into an Amended and Restated Agreement and Plan of
Merger, to be dated as of the date hereof (as so amended and restated, the
"Merger Agreement");
WHEREAS, as of the date hereof, each Shareholder "beneficially owns"
(as such term is defined in Rule 13d-3 promulgated under the Exchange Act) and
each Shareholder is entitled to dispose of (or to direct the disposition of) and
to vote (or to direct the voting of) the number of shares of Class A Common
Stock, par value $0.10 per share of the Company (the "Common Stock") set forth
opposite the Shareholder's name on Annex A hereto, as such shares may be
adjusted by stock dividend, stock split, recapitalization, combination, merger,
consolidation, reorganization or other change in the capital structure of the
Company affecting the Common Stock (such shares of Common Stock, together with
any other shares of Common Stock the voting power over which is acquired by the
Shareholders during the period from and including the date hereof through and
including the date on which this Agreement is terminated in accordance with its
terms, are collectively referred to herein as the Shareholder's "Subject
Shares");
WHEREAS, prior to the execution and delivery of this Agreement by any
party hereto, Parent has purchased from Xxxxxx X. Xxxxxxxx 100 shares of Common
Stock (the "Purchased Shares"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement and in consideration therefor, Parent has
required that each Shareholder agrees, and each Shareholder has agreed, to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them
in the Merger Agreement.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
SECTION 2.1 AGREEMENT TO VOTE THE SUBJECT SHARES. Each Shareholder, in its
capacity as such, hereby agrees that during the period commencing on the date
hereof and continuing until the termination of this Agreement (such period, the
"Voting Period"), at any meeting (or any adjournment or postponement thereof) of
the holders of any class or classes of the capital stock of the Company, however
called, or in connection with any written consent of the holders of any class or
classes of the capital stock of the Company, the Shareholders shall vote (or
cause to be voted) their Subject Shares (x) in favor of the approval of the
terms of the Merger Agreement and each of the other transactions contemplated by
the Merger Agreement (and any actions required in furtherance thereof) at every
meeting of the shareholders of the Company (or in connection with any written
consent) at which such matters are considered and at every adjournment thereof,
(y) against any action, proposal, transaction or agreement that would result in
a breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company or any of its subsidiaries under the
Merger Agreement or of the Shareholders under this Agreement, and (z) except as
otherwise agreed to in writing in advance by Parent, against the following
actions or proposals (other than the transactions contemplated by the Merger
Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries and any Company Acquisition Proposal; (ii) a sale, lease or
transfer of a significant part of the assets of the Company or any of its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its subsidiaries (each of the actions in clauses (i) or
(ii), a "Business Combination"); and (iii) (A) any change in the persons who
constitute the board of directors of the Company that is not approved in advance
by at least a majority of the persons who were directors of the Company as of
the date of this Agreement (or their successors who were so approved); (B) any
change in the present capitalization of the Company or any amendment of the
Company's articles of incorporation or bylaws; (C) any other material change in
the Company's corporate structure or business; or (D) any other action or
proposal involving the Company or any of its subsidiaries that is intended, or
could reasonably be expected, to prevent, impede, interfere with, delay,
postpone, or adversely affect the transactions contemplated by the Merger
Agreement. Any such vote shall be cast or consent shall be given in accordance
with such procedures relating thereto as shall ensure that it is duly counted
for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Each of the Shareholders agrees
not to enter into any agreement, letter of intent, agreement in principle or
understanding with any person that violates or conflicts with or could
reasonably be expected to violate or conflict with the provisions and agreements
contained in this Agreement or the Merger Agreement. For the avoidance of doubt,
this Agreement is intended to constitute a voting agreement entered into under
Section B, Article 2.30 of the TBCA for the duration of the Voting Period.
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SECTION 2.2 GRANT OF IRREVOCABLE PROXY. Each Shareholder hereby appoints
Parent and any designee of Parent, and each of them individually, such
Shareholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting Period with
respect to each of the Shareholders' Subject Shares in accordance with Section
2.1. This proxy is given to secure the performance of the duties of each of the
Shareholders under this Agreement. The Shareholders shall promptly cause a copy
of this Agreement to be deposited with the Company at its principal place of
business. Each Shareholder shall take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy.
SECTION 2.3 NATURE OF IRREVOCABLE PROXY. The proxy and power of attorney
granted pursuant to Section 2.2 by each Shareholder shall be irrevocable during
the term of this Agreement, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and shall revoke all prior
proxies granted by the Shareholders. The power of attorney granted herein is a
durable power of attorney and shall survive the dissolution, bankruptcy, death
or incapacity of each Shareholder. For the avoidance of doubt, the proxy and
power of attorney is granted pursuant to Section C, Article 2.29 of the TBCA, is
coupled with an interest and is granted to Parent as a shareholder of the
Company and a party to this voting agreement which is created under Section B,
Article 2.30 of the TBCA and is intended to be valid during the Voting Period,
which the parties understand and agree may be more than eleven months from the
date hereof.
SECTION 2.4 LEGEND. Each Shareholder shall promptly cause the following
legend to be conspicuously noted on each certificate representing its Subject
Shares:
"The shares represented by this certificate are subject to a
Principal Shareholders Agreement dated as of August 13, 2001.
The Principal Shareholders Agreement restricts the
transferability of the shares represented by this certificate
and includes a voting agreement and an irrevocable proxy to
vote the shares represented by this certificate."
ARTICLE III
COVENANTS
SECTION 3.1 GENERALLY. Except for pledges in existence as of the date
hereof, each Shareholder agrees that, except as contemplated by the terms of
this Agreement, it shall not (i) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
agreement with respect to, or consent to, the sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of its Subject
Shares; (ii) grant any proxies or powers of attorney in respect of the Subject
Shares, deposit any of its Subject Shares into a voting trust or enter into a
voting agreement with respect to any of its Subject Shares; and (iii) take any
action that would have the effect of preventing, impeding, interfering with or
adversely affecting its ability to perform its respective obligations under this
Agreement. Notwithstanding the foregoing, nothing herein shall prevent the
Shareholders from
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assigning or transferring any Subject Shares beneficially owned by either of
them to any trust, estate, family partnership, foundation (whether family,
private or public) or other charitable organization (a "Permitted Transferee")
if such Permitted Transferee agrees in writing to be bound by all of the
provisions of this Agreement as a Shareholder hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each of the Shareholders hereby represents and warrants to Parent as
follows:
SECTION 4.1 DUE AUTHORITY. Each Shareholder has the capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
SECTION 4.2 OWNERSHIP OF SHARES. Each Shareholder legally or beneficially
owns the number of shares of Common Stock set forth opposite their name on Annex
A hereto. The number of shares of Common Stock set forth opposite their name on
Annex A hereto are all of the shares of Common Stock legally or beneficially
owned by them. Each Shareholder has sole voting power and sole power of
disposition, in each case with respect to all of shares of Common Stock set
forth opposite his or her name on Annex A hereto, with no limitations,
qualifications or restrictions on such rights, subject only to applicable
securities laws and the terms of this Agreement and as otherwise noted on
Annex A.
SECTION 4.3 NO CONFLICTS. (i) No filing with any governmental authority,
and no authorization, consent or approval of any other person is necessary for
the execution of this Agreement by the Shareholders and the consummation by the
Shareholders of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Shareholders, the consummation
by the Shareholders of the transactions contemplated hereby or compliance by the
Shareholders with any of the provisions hereof shall (A) result in, or give rise
to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which
either Shareholder is a party or by which either Shareholder or any of his or
her Subject Shares or assets may be bound, or (B) violate any applicable order,
writ, injunction, decree, judgment, statute, rule or regulation which could
reasonably be expected to adversely affect the Shareholder's ability to perform
its obligations under this Agreement.
SECTION 4.4 TITLE TO PURCHASED SHARES. The transfer by Xxxxxx X. Xxxxxxxx
of the Purchased Shares to Parent has passed to and unconditionally vested in
Parent good and valid title to all of the Purchased Shares, free and clear of
all claims, Liens, restrictions, limitations and encumbrances whatsoever, other
than any such encumbrances created by Parent.
SECTION 4.5 RELIANCE BY PARENT. Each Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
the execution and delivery of this Agreement by such Shareholder.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Shareholder as follows:
SECTION 5.1 DUE ORGANIZATION, ETC. Parent is a company duly organized and
validly existing under the laws of the jurisdiction of its incorporation. Parent
has all necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by Parent has been duly authorized by all necessary action
on the part of Parent and, assuming its due authorization, execution and
delivery by each Shareholder constitutes a valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, except to the
extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
SECTION 5.2 CONFLICTS. (i) No filing with any governmental authority, and
no authorization, consent or approval of any other person is necessary for the
execution of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Parent, (B) result in a violation or breach of or a
default under any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which Parent is a party or by
which Parent or any of its assets may be bound, or (C) violate any applicable
order, writ, injunction, decree, judgment, statute, rule or regulation which
could reasonably be expected to adversely affect Parent's ability to perform its
obligations under this Agreement.
SECTION 5.3 RELIANCE BY SHAREHOLDER. Parent understands and acknowledges
that each Shareholder is entering into this Agreement in reliance upon the
execution and delivery of the Merger Agreement by Parent.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 SHAREHOLDER CAPACITY. No Shareholder executing this Agreement
who is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in his or her capacity as such
director or officer. Each Shareholder executes this Agreement solely in his or
her capacity as the record holder or beneficial owner of his or her Subject
Shares and nothing herein shall limit or affect any actions taken by a
Shareholder in his or her capacity as an officer or director of the Company.
SECTION 6.2 PUBLICATION. Each Shareholder hereby permits Parent to publish
and disclose in the Proxy Statement/Prospectus (including all documents and
schedules filed with the Securities and Exchange Commission) its identity and
ownership of shares of Common Stock and the nature of its commitments,
arrangements, and understandings pursuant to this Agreement.
5
SECTION 6.3 FURTHER ACTIONS. Each of the parties hereto agrees that it will
use its best efforts to do all things necessary to effectuate this Agreement.
SECTION 6.4 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements and understandings, oral and written,
with respect thereto.
SECTION 6.5 BINDING EFFECT; BENEFIT; ASSIGNMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their Permitted
Transferees, heirs, estates and successors. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, except by will or by the laws of descent and distribution,
without the prior written consent of each of the other parties, except that
Parent may assign and transfer its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent. Nothing in this Agreement,
expressed or implied, is intended to confer on any person, other than the
parties hereto, any rights or remedies.
SECTION 6.6 AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by all of the
relevant parties hereto.
SECTION 6.7 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by facsimile
(upon confirmation of receipt), as follows:
(i) If to any Shareholder, to such Shareholder at the address set
forth immediately beneath such Shareholder's name on Annex A:
with a copy (which shall not constitute notice) to:
Bracewell & Xxxxxxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx III
Fax: (000) 000-0000
(ii) If to Parent, to it at:
Devon Energy Corporation
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: J. Xxxxx Xxxxxxx
Fax: (000) 000-0000
and
Duke X. Xxxxx
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
or to such other person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery, except for a notice of a change of address, which shall be effective
only upon receipt thereof.
SECTION 6.8 SPECIFIC ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
SECTION 6.9 REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
SECTION 6.10 NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 6.11 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS. EACH OF THE SHAREHOLDERS AND PARENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COMPETENT COURTS OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA, IN
EITHER CASE LOCATED IN DALLAS COUNTY, TEXAS (THE "TEXAS COURTS") FOR ANY
LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY (AND AGREES NOT TO COMMENCE ANY LITIGATION RELATING THERETO
EXCEPT IN SUCH COURTS), WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION IN THE TEXAS COURTS AND AGREES NOT TO PLEAD OR CLAIM IN ANY TEXAS
COURT THAT SUCH LITIGATION BROUGHT THEREIN HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
7
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 6.12 HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 6.13 COUNTERPARTS; FACSIMILES. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument. A signature
transmitted by facsimile shall be treated for all purposes by the parties hereto
as an original, shall be binding upon the party transmitting such signature
without limitation.
SECTION 6.14 TERMINATION. This Agreement shall terminate, and none of
Parent or any Shareholder shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no effect upon the earliest
to occur of (a) the mutual consent of Parent and the Shareholders, (b) the
second anniversary of the date of this Agreement, (c) the Effective Time or (d)
the termination of the Merger Agreement (i) by Parent for any reason or (ii) by
the Company because of the failure of the conditions contained in Sections
7.1(a)(ii), 7.1(b), 7.1(c), 7.1(d), 7.1(e) or 7.2 to have been satisfied;
provided, further, that termination of this Agreement shall not prevent any
party hereunder from seeking any remedies (at law or in equity) against any
other party hereto for such party's breach of any of the terms of this
Agreement. Notwithstanding the foregoing, Sections 6.4, 6.5, 6.7, 6.9 and 6.11
shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, Parent and each Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
DEVON ENERGY CORPORATION
By: /s/ J. XXXXX XXXXXXX
------------------------------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Chairman, President and Chief Executive Officer
THE SHAREHOLDERS
/s/ XXXXXX X. XXXXXXXX
------------------------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXX XXXXXXXX
------------------------------------------------------
Xxxxxxx Xxxxx Xxxxxxxx
ANNEX A
LIST OF SHAREHOLDERS AND OWNERSHIP
OF COMMON STOCK
NUMBER OF SHARES OF
COMMON STOCK
SHAREHOLDER ADDRESS AS OF AUGUST 10, 2001
----------- ------- ---------------------
Xxxxxx X. Xxxxxxxx c/o J. Xxxx Xxxxxxxx 23,380,811(1)(2)(3)(4)
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Xxxxxxx Xxxxx Xxxxxxxx c/o J. Xxxx Xxxxxxxx 1,022,506(1)
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
--------------
(1) Subject to shared power of spouse under applicable
Texas marital property
laws.
(2) Includes 404,666 shares of Common Stock which Xxxxxx X. Xxxxxxxx has the
right to acquire within 60 days on the exercise of stock options.
(3) Includes 1,022,506 shares of Common Stock owned of record by Xxxxxxx Xxxxx
Xxxxxxxx. Xxxxxx X. Xxxxxxxx disclaims beneficial ownership of these
shares.
(4) Includes 5,888,998 shares of Common Stock which Xxxxxx X. Xxxxxxxx has
pledged with lenders to secure existing credit facilities. The certificates
representing these shares will not be stamped with the legend referred to
in Section 2.4.
