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EXHIBIT 2.2
VOTING AGREEMENT (individual)
This Voting Agreement ("AGREEMENT") is dated as of ___________ between
Bellwether Exploration Company, a Delaware corporation ("BELLWETHER"), and
[XXXXX ENERGY COMPANY SHAREHOLDER] (the "SHAREHOLDER").
WITNESSETH:
WHEREAS, as of the date hereof, Shareholder owns an aggregate of
_______ shares (together with any shares acquired after the date hereof, the
"SHARES") of [COMMON STOCK/PREFERRED STOCK, SERIES B], par value $.01 per share
("STOCK"), of Xxxxx Energy Company, a Texas corporation ("XXXXX");
WHEREAS, Bellwether is prepared to enter into an Agreement and Plan of
Merger with Xxxxx (as amended from time to time, the "MERGER AGREEMENT")
providing for the merger of Xxxxx with and into Bellwether (the "MERGER"), with
Bellwether being the surviving entity;
WHEREAS, to encourage Bellwether to enter into the Merger Agreement,
Shareholder is willing to enter into certain arrangements with respect to the
Shares;
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the same meaning ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Shareholder's Support of the Merger. From the date hereof until the
earliest to occur of (i) the termination of the Merger Agreement, and (ii) the
consummation of the Merger:
(a) Shareholder owns the Shares and will not, directly or indirectly,
(i) sell, transfer, pledge or otherwise dispose of any Shares to any Person
other than Bellwether, Xxxxx or its designee unless such Person shall have
agreed in writing to be bound by the terms of this Agreement, or (ii) grant a
proxy with respect to any Shares to any Person other than Bellwether or its
designee, or grant an option with respect to any of the foregoing, or enter into
any other agreement or arrangement with respect to any of the foregoing.
(b) Shareholder will not, and will cause its respective officers or
directors (to the extent Shareholder is not a natural person), employees or
other agents not to, directly or indirectly, (i) take any action to solicit,
initiate or encourage any Xxxxx Acquisition Proposal or (ii) engage in
negotiations with, or disclose any nonpublic information relating to Xxxxx or
its Subsidiaries, respectively, or afford access to their respective properties,
books or records to any Person that may be considering making, or has made, a
Xxxxx Acquisition Proposal. Shareholder shall promptly notify Bellwether of all
relevant terms of any inquiries or proposals received by Shareholder, its
respective
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officers or directors (to the extent Shareholder is not a natural person),
employees or other agents relating to any such matters and if such inquiry or
proposal is in writing, Shareholder shall deliver or cause to be delivered to
Bellwether a copy of such inquiry or proposal.
(c) Shareholder agrees that it will vote, or execute a written consent
with respect to, all Shares (i) in favor of approval of the Merger Agreement and
the Merger and (ii) subject to the provisions of paragraph (d) below, against
any Xxxxx Acquisition Proposal. In addition, if requested by Bellwether,
Shareholder shall execute a written consent with respect to the matters
described above on the day before the information statement/proxy/prospectus
contemplated by the Merger Agreement is mailed to Bellwether's stockholders and
Xxxxx'x shareholders.
(d) Shareholder agrees that, if requested by Bellwether, Shareholder
will not attend and Shareholder will not vote the Shares at any annual or
special meeting of Shareholders at which a Xxxxx Acquisition Proposal is being
considered, or execute any written consent of Shareholders relating directly or
indirectly to a Xxxxx Acquisition Proposal, during such period.
(e) Shareholder acknowledges that the terms of this Agreement will be
required to be described, and this Agreement will be required to be filed, in
certain securities law filings relating to the Merger.
(f) To the extent inconsistent with the provisions of this Section 1,
Shareholder hereby revokes any and all proxies with respect to the Shares or any
other voting securities of Xxxxx held by Shareholder.
Notwithstanding anything to the contrary set forth herein, this Agreement shall
not restrict Shareholder from acting in accordance with his fiduciary duties as
an officer or director of Xxxxx.
2. Miscellaneous.
(a) Shareholder, on the one hand, and Bellwether, on the other,
acknowledge and agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties hereto shall be entitled to an injunction or injunctions to prevent
breach of any provision of this Agreement and to enforce specifically the terms
and provisions hereof in any court of the United States or any state thereof
having jurisdiction, in addition to any other remedy to which they may be
entitled at law or equity.
(b) Descriptive headings are for convenience only and shall not control
or affect the meaning or construction of any provision of this Agreement.
(c) All notices, consents, requests, instructions, approvals and other
communications provided for herein shall be validly given, made or served, if in
writing and delivered personally, by telecopy or sent by registered mail,
postage prepaid:
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If to Bellwether:
Bellwether Exploration Company
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Manner
Facsimile No.: (000) 000-0000
With copies to (which shall not constitute notice):
Xxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, III
Facsimile No.: (000) 000-0000
If to Shareholder: At the address specified on the signature page
hereof.
With copies to (which shall not constitute notice):
Xxxxx Energy Company
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxx
Facsimile No.: (000) 000-0000
and
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxxx Xx., Xxxxx 0000 Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Facsimile No.: (000) 000-0000
or to such other address or telecopy number as any party may, from time to time,
designate in a written notice given in a like manner. Notice given by telecopy
shall be deemed delivered on the day the sender receives telecopy confirmation
that such notice was received at the telecopy number of the addressee. Notice
given by mail as set out above shall be deemed delivered three days after the
date the same is postmarked.
(d) From and after the termination of this Agreement, the covenants of
the parties hereto set forth herein shall be of no further force or effect and
such parties shall be under no further obligation with respect thereto.
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(e) Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(i) "AFFILIATE" is defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect
on the date hereof.
(ii) "MERGER" means the transaction referred to in the second
whereas clause of this Agreement, or any amendment to or modification
that does not adversely affect the economic value of the Merger to
Shareholder pursuant to the transaction set forth in the Merger
Agreement.
(iii) "PERSON" means any individual, firm, corporation,
partnership, trust, limited liability company or other entity.
(f) Due Authorization; No Conflicts. Shareholder hereby represents and
warrants to Bellwether as follows:
(i) Shareholder has full power and authority to enter into
this Agreement.
(ii) Neither the execution or delivery of this Agreement nor
the consummation of the transactions contemplated herein will (a)
conflict with or result in a breach, default or violation of any
agreement, proxy, document, instrument, judgment, decree, order,
governmental permit, certificate, license, law, statute, rule or
regulation to which Shareholder is a party or to which it is subject,
(b) result in the creation of any lien, charge or other encumbrance on
any Shares or (c) require Shareholder to obtain the consent of any
private nongovernmental third party.
(iii) No consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other Person is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Agreement or Shareholder's performance
of the terms of this Agreement or the validity or enforceability of
this Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors and assigns, but, except as contemplated pursuant to
Section 1(a), shall not be assignable by any party hereto without the prior
written consent of the other parties hereto.
(h) Waiver. No party hereto may waive any of the terms or conditions of
this Agreement except by a duly signed writing referring to the specific
provision to be waived.
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(i) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Texas.
(j) Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all other and prior agreements and understandings, both written
and oral, among the parties hereto and their Affiliates.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Shareholder and Bellwether have each caused this
Agreement to be duly executed as of the day and year first above written.
SHAREHOLDER
By:
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Name:
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Address:
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BELLWETHER EXPLORATION COMPANY
By:
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Name:
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Title:
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