GLOBEX VOTING AND LOCK-UP AGREEMENT
This Voting and Lock-Up Agreement (this "Agreement") is made
and entered into as of April 5, 2001 by and between Apco Argentina Inc., a
Cayman Islands corporation ("Parent"), and the stockholders of Globex
Energy Inc., a Delaware corporation (the "Company"), named on the signature
pages hereof (each a "Stockholder").
WHEREAS, concurrently with the execution of this Agreement,
Parent, Apco Delaware, Inc., a Delaware corporation and wholly owned
subsidiary of Parent ("Merger Subsidiary"), and the Company, have entered
into an Agreement and Plan of Merger dated as of April 5, 2001 (the "Merger
Agreement"), providing for the merger of Merger Subsidiary with and into
the Company (the "Merger"), pursuant to which the Company will become a
wholly-owned subsidiary of Parent;
WHEREAS, each Stockholder is the sole record and beneficial
owner of the number of shares of capital stock, other equity interests and
securities convertible into capital stock or other equity interests in the
Company as is indicated on the applicable signature page of this Agreement
(the "Shares"); and
WHEREAS, in consideration of and to induce the execution of the
Merger Agreement by Parent, each Stockholder agrees to certain transfer
restrictions and voting requirements to facilitate consummation of the
Merger as more fully described below.
NOW, THEREFORE, in consideration of the mutual promises and the
mutual covenants and agreements contained herein, the parties agree as
follows:
1. Agreement to Retain Shares. Except as expressly contemplated
by the Merger Agreement, each Stockholder agrees not to transfer, assign,
sell, exchange, pledge, hypothecate, grant a security interest in or
otherwise dispose of, or offer to transfer, assign, sell, exchange,
encumber or otherwise dispose of, or grant any proxy or power of attorney,
deposit any Shares into a voting trust or enter into a voting agreement,
understanding or arrangement with respect to any of the Shares at any time
prior to consummation of the Merger or the Expiration Date, as defined
herein, except that a Stockholder may transfer its Shares to a Permitted
Transferee if, and only if, (i) prior to such transfer, the Stockholder
notifies Parent in writing of the identity of such Permitted Transferee,
represents that such transferee is a Permitted Transferee and provides any
information reasonably requested by Parent in order to confirm that such
transferee is a Permitted Transferee, (ii) prior to such transfer such
Permitted Transferee executes a copy of this Agreement agreeing to be bound
by the terms hereof and (iii) such transfer is made in accordance with all
applicable law (including any applicable federal and state securities
laws), provided that no such transfer shall be made if the Company would be
required to register any Shares under the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended or any similar
state securities laws or if the Company would become subject to the
Investment Company Act of 1940, as amended. The "Expiration Date" shall
mean the date on which the Merger Agreement shall have been terminated
pursuant to Article VII of the Merger Agreement. "Permitted Transferee"
shall mean, subject to this Section 1, in the case of any Stockholder, the
person or entity to whom the following transfers are made: (A) a transfer
made by such Stockholder to such Stockholder's spouse, parents or direct
lineal descendants or a trust, the beneficiaries of which include only such
Stockholder's spouse, parents or direct lineal descendants; (B) a transfer
made by such Stockholder to a bonafide charitable organization within the
meaning of section 501(c)(3) of the Internal Revenue Code of 1986, as
amended; (C) a transfer made by a pro-rata distribution of such Shares to
holders of equity interests in such Stockholder; and (D) a transfer made by
such Stockholder to an employee of such Stockholder. In addition, a
"Permitted Transferee" shall include, subject to this Section 1, the
entities to whom the following transfers are made (A) a transfer by C. Xxxx
Xxxxxx to a Xxxxxx Controlled Entity, and (B) a transfer by a Xxxxxx
Controlled Entity to another Xxxxxx Controlled Entity. A "Xxxxxx Controlled
Entity" shall mean an entity (A) which C. Xxxx Xxxxxx owns, directly or
indirectly, at least 51% of the outstanding voting interest and at least
51% of the outstanding economic interest, and (B) which is otherwise
controlled solely by him.
2. Agreement to Vote Shares. At any meeting of the stockholders
of the Company called with respect to the Merger, the Merger Agreement and
any other transactions contemplated thereby, and at any adjournment or
adjournments thereof, and with respect to any consent or proxies solicited
with respect to the Merger, the Merger Agreement and any other transactions
contemplated thereby, each Stockholder shall vote the Shares (a) in favor
of approval of the Merger Agreement, including any amendments thereto, and
the Merger and any matter which could reasonably be expected to facilitate
the Merger, and (b) against any alternative transaction or any other matter
which could reasonably be expected to facilitate the consummation of an
alternative transaction. Each Stockholder, as the holder of Shares, shall
be present, in person or by proxy, at all meetings of stockholders of the
Company or at any adjournment or adjournments thereof so that all Shares
are counted for the purpose of determining the presence of a quorum at such
meetings.
3. Appraisal Rights. Each Stockholder hereby irrevocably waives
any rights of appraisal with respect to the Merger or rights to dissent
from the Merger that the Stockholder may have.
4. Additional Purchases. For purposes of this Agreement, the
term "Shares" shall include any shares of capital stock or other equity
interests of the Company which the Stockholder purchases or otherwise
acquires after the execution of this Agreement and prior to the Expiration
Date, including, without limitation, by exercise of options or warrants.
5. Representations, Warranties and Covenants of the
Stockholders. Each Stockholder hereby represents, warrants and covenants to
Parent that, except as specifically described on Annex A to this Agreement,
each Stockholder (i) is the sole record and beneficial owner of the Shares,
which at the date hereof and at all times until the Expiration Date will be
free and clear of any liens, claims, options, charges or other
encumbrances, (ii) does not own beneficially or of record any shares of
stock or other equity interest of the Company other than the Shares, and
(iii) has full power and authority to make, enter into, deliver and carry
out the terms of this Agreement. Each Stockholder hereby further
represents, warrants and covenants that (i) this Agreement constitutes the
legal, valid and binding obligation of such Stockholder, and (ii) neither
the execution of this Agreement by such Stockholder nor the consummation of
the transactions contemplated hereby will result in a breach or violation
of the terms of any agreement by which such Stockholder is bound or of any
decree, judgment, order, law or regulation now in effect of any court or
other governmental body applicable to such Stockholder. C. Xxxx Xxxxxx
represents, warrants and covenants to Parent that Legacy Energy
Partnership, Providence Corporation and Worldwide Exploration Corporation
are Xxxxxx Controlled Entities.
6. Representations, Warranties and Covenants of Parent. Parent
represents, warrants and covenants to each Stockholder that this Agreement
(i) has been authorized by all necessary corporate action on the part of
Parent and has been duly executed by a duly authorized officer of Parent
and (ii) constitutes the legal, valid and binding obligation of Parent.
Neither the execution of this Agreement by Parent nor the consummation of
the transactions contemplated hereby will result in a breach or violation
of the terms of any agreement by which Parent is bound or of any decree,
judgment, order, law or regulation now in effect of any court or other
governmental body applicable to Parent.
7. Additional Documents. Each of the Stockholders and Parent
hereby covenant and agree to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Parent or such
Stockholder, as the case may be, to carry out the intent of this Agreement.
8. Consent and Waiver. Each Stockholder hereby gives any
consent or waivers that are reasonably required for the consummation of the
Merger under the terms of any agreement to which such Stockholder is a
party or pursuant to any rights such Stockholder may have.
9. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
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.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may
be assigned by any of the parties without the prior written consent of the
other.
(c) Amendments and Modifications. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or
agreements of the Stockholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies which may be available to Parent
upon such violation, Parent shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other
means available to it at law or in equity.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed telecopy, or
sent by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties as follows:
(i) if to Parent, to:
Attention: Xxxx X. Xxxxxxxxx, Xx.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
with a copy to:
Attention: Xxxxx Xxxxxxx, Esq.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx & XxXxxxxx
One Prudential Plaza
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
(ii) if to any Stockholder, to the address set forth on the
applicable signature page hereto;
or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall only be effective upon
receipt.
(f) Termination. This Agreement shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
(g) Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware
without giving effect to principles of conflicts of law.
(h) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties
with respect to such subject matter.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
APCO ARGENTINA INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
STOCKHOLDER
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MDC INVESTMENT LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
XXXXXXX XXXX XXXXXX REVOCABLE TRUST
By: /s/ Xxxxxxx Xxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxx Xxxxxx
Title: President
WORLDWIDE EXPLORATION CORPORATION
By: /s/ C. Xxxx Xxxxxx
------------------------
Name: C. Xxxx Xxxxxx
Title: President
XXXX MANAGEMENT COMPANY
By: /s/ Xxxxxx X. Xxxx
------------------------
Name: Xxxxxx X. Xxxx
Title: President
XXXXXX DEVELOPMENT, LTD.
By: /s/ X.X. Xxxxxx
------------------------
Name: X.X. Xxxxxx
Title: President
Stockholder's Address for Notice:
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Shares owned beneficially and of record:
______ shares of Common Stock
______ shares of Preferred Stock
______ shares of Common Stock issuable pursuant to options
______ shares of Preferred Stock issuable pursuant to options
______ shares of Common Stock issuable pursuant to warrants
______ shares of Preferred Stock issuable pursuant to warrants
______ any other direct or indirect equity interests in the Company
(please specify)
ANNEX A
ENCUMBRANCES UPON THE SHARES HELD BY THE UNDERSIGNED
