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EXHIBIT 4
ESCROW AGREEMENT
THE ESCROW AGREEMENT, dated as of March 5, 2001 (the "Agreement"),
among Xxxxxxx Exploration Company, a Delaware corporation ("Xxxxxxx"), XXX
Merchant Banking Partners III, LP, a Delaware limited partnership ("MBP"), DLJ
Offshore Partners III, CV, a Netherlands Antilles limited partnership
("Offshore"), DLJMB Funding III, Inc., a Delaware corporation ("MB"), and DLJ
ESC II, LP, a Delaware limited partnership ("ESC,") and collectively with MBP,
Offshore and MB (the "Investors") and The Chase Manhattan Bank, a New York State
Bank, corporation (the "Escrow Agent").
WITNESSETH:
WHEREAS, Xxxxxxx and the Investors have entered into a Securities
Purchase Agreement of even date herewith (the "Securities Purchase Agreement")
pursuant to which Xxxxxxx is issuing and selling to the Investors and the
Investors are purchasing from Xxxxxxx an aggregate of 500,000 shares of
Brigham's Series A Preferred Stock (the "Shares") and warrants to acquire
2,105,263 shares of Brigham's Common Stock (the "Warrants");
WHEREAS, under Nasdaq rules, the Warrants may not be exercisable until
after approval of the Warrants and the issuance of the Warrants to the Investors
has been obtained from Brigham's stockholders;
WHEREAS, pursuant to the Securities Purchase Agreement, Xxxxxxx has
covenanted and agreed to submit for stockholder approval at its annual
stockholders' meeting, to be held on or before May 31, 2001, the Warrants and
the issuance of the Warrants to the Investors;
WHEREAS, certain stockholders of Xxxxxxx have entered into a
Stockholders Voting Agreement dated March 1, 2001 (the "Stockholders Voting
Agreement"), pursuant to which they have agreed to vote all of the shares of
Xxxxxxx Common Stock held by them on the record date for Brigham's annual
stockholders' meeting to approve the Warrants and the issuance of the Warrants
and the terms thereof;
WHEREAS, the stockholders that are parties to the Stockholders Voting
Agreement currently hold a majority of the outstanding shares of Xxxxxxx Common
Stock, but if a sufficient number of currently exercisable options, warrants or
other convertible securities were exercised or converted into Xxxxxxx Common
Stock on or before the record date for the Xxxxxxx annual stockholders' meeting,
such stockholders could hold less than a majority of the shares of Xxxxxxx
Common Stock outstanding on the record date for such meeting;
WHEREAS, in order to avoid the release of the purchase price for the
Shares and Warrants to Xxxxxxx and of the Shares and the Warrants to the
Investors prior to ensuring that such stockholder approval will be obtained,
Xxxxxxx and the Investors have agreed pursuant to the Securities Purchase
Agreement to escrow the purchase price, the Shares and the Warrants pursuant to
the terms hereof;
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein and in the Securities Purchase Agreement and
intending to be legally bound hereby, the parties hereby agree as follows:
1. Appointment and Agreement of Escrow Agent. Xxxxxxx and the Investors
hereby appoint the Escrow Agent to serve as, and the Escrow Agent
hereby agrees to act as, escrow agent upon the terms and conditions of
this Agreement.
2. Establishment of the Escrow Fund. The Investors shall deliver to the
Escrow Agent the amounts reflected opposite their names below and such
amounts are referred to herein collectively as the "Escrow Amount":
PERCENTAGE
OWNERSHIP
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MBP $7,181,440.00 72.54
Offshore 303,079.00 3.06
MB 667,141.00 6.74
ESC $1,748,340.00 17.66
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TOTAL $9,900,000.00 100%
The Escrow Agent shall hold the Escrow Amount and all interest and
other amounts earned thereon (the "Escrow Fund") in escrow pursuant to
this Agreement in account no. 0000000 21451-00 at The Chase Manhattan
Bank -- Houston, Texas, ABA No. 000000000, Trust Clearing Account No.
00101606270 (the "Escrow Account").
3. Deposit of Shares and Warrants. Xxxxxxx shall deliver to Escrow Agent
on the date hereof certificates representing the shares of Xxxxxxx
Preferred Stock (collectively referred to as the "Shares") and Warrant
Certificates to purchase shares of Xxxxxxx Common Stock (collectively
referred to as the "Warrants") issued in the names of the Investors in
amounts reflected opposite their names below:
PREFERRED
INVESTOR STOCK WARRANTS
-------- --------- ---------
MBP 362,699 1,527,154
Offshore 15,307 64,451
MB 33,694 141,869
ESC 88,300 371,789
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TOTAL 500,000 2,105,263
The Shares and Warrants are referred to herein collectively with the
Escrow Fund as the "Escrow Property." The Escrow Agent shall hold the
Shares and Warrants, together with the Escrow Fund, in the Escrow
Account.
4. Distributions of the Escrow Property. The Escrow Agent shall distribute
the Escrow Property in accordance with the following provisions:
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(a) The Escrow Agent shall release the Shares and Warrants to the
Investors, and shall release the Escrow Fund to Xxxxxxx, upon
receipt of a certificate executed by the Investors and Xxxxxxx
stating either of the following:
(i) That
(A) Xxxxxxx filed preliminary proxy materials with
the Securities and Exchange Commission (the "SEC") in
accordance with applicable rules under the Exchange
Act seeking stockholder approval at Brigham's annual
stockholders meeting to be held on or before May 31,
2001 (the "Annual Meeting") of the matters described
in the Stockholders' Voting Agreement dated as of
March 1, 2001 by and among Xxxxxxx and certain of its
stockholders (the "Stockholders' Voting Agreement"),
as more fully described in Section 5.7 of the
Securities Purchase Agreement,
(B) either (1) the SEC has notified Xxxxxxx (whether
orally or in writing) that it will not review such
proxy materials (which notice, if telephonic, shall
be certified to the Investors by Xxxxxxx in writing),
(2) the SEC has notified Xxxxxxx that it will review
such proxy materials, the SEC has completed such
review and Xxxxxxx has responded to all comments from
the SEC to the SEC's satisfaction, or (3) as of the
date of mailing of the proxy materials to
stockholders of Xxxxxxx, Xxxxxxx has not received any
notice, written or otherwise, from the SEC that the
SEC intends to review such proxy materials and upon
the occurrence of any of the events described in
subsection (1), (2) or (3) above, Xxxxxxx shall
promptly certify the occurrence of such event in
writing to the Investors; and
(C) as of the record date for the annual meeting to
be held in accordance with Section 5.7 of the
Securities Purchase Agreement, the parties to the
Stockholders' Voting Agreement held at least a
majority of the outstanding shares of Common Stock of
Xxxxxxx; or
(ii) That holders of a majority of the outstanding shares
of Common Stock have voted in favor of the matters
described in the Stockholders' Voting Agreement at
the Annual Meeting.
(b) The Escrow Agent shall release the certificates representing
all of the Shares and Warrants to Xxxxxxx, and shall release
the Escrow Fund to the Investors in the amounts reflected in
Section 2 hereof, upon receipt of a certificate executed by
the Investors and Xxxxxxx stating that holders of a majority
of the outstanding shares of Common Stock have failed to vote
in favor of the matters described in the Stockholders' Voting
Agreement at the Annual Meeting.
(c) The Escrow Agent shall release the certificates representing
the applicable Shares and Warrants, and shall release the
Escrow Fund, as set forth in either paragraph
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(a) or (b) above upon receipt of a certificate as set forth in
paragraph (a) or (b), respectively, signed by only Xxxxxxx or
the Investors, if (i) the party signing such certificate also
certifies that they have provided a copy of such certificate
to the other parties to this Agreement in accordance with the
notice provisions hereof and (ii) ten (10) calendar days shall
have elapsed between the date on which the Escrow Agent shall
have received the certificate required by paragraph (a) or (b)
and the Escrow Agent shall not have received any notice in
accordance with the notice provisions hereof from another
party to this Agreement protesting or otherwise disputing,
challenging or disagreeing with any assertion contained in the
certificate.
(d) In the event of any dispute under paragraph (c) above, Xxxxxxx
and the Investors have agreed to resolve such dispute by
binding arbitration pursuant to Section 10.8 of the Securities
Purchase Agreement. Upon receipt of a certificate from the
prevailing party directing the Escrow Agent to make a
distribution of the Shares, Warrants, and Escrow Fund, all as
specified in such certificate, which certificate is
accompanied by an arbitral order or award which states on its
face that it is rendered pursuant to the Securities Purchase
Agreement and provides for such distribution as set forth in
the certificate, the Escrow Agent shall distribute such
Shares, Warrants, and Escrow Fund as directed by such
certificate and final arbitral order or award. Any such
certificate and final arbitral order or award shall override
any notice or other document received by the Escrow Agent
pursuant to paragraph (c) above, except to the extent that
Escrow Agent has previously acted in accordance with the terms
of paragraphs (a) or (b) above.
(e) In the event that the Escrow Agent has not received a
certificate under paragraph (a), (b), (c) or (d) on or before
June 15, 2001 (the "Expiration Date"), the Escrow Agent shall
release the certificates representing the applicable Shares
and Warrants to Xxxxxxx, and shall release the Escrow Fund to
the Investors in the amounts reflected in Section 2 hereof,
upon receipt of a certificate on or after June 15, 2001
executed by the Investors requesting such distribution.
(f) Xxxxxxx and the Investors agree to deliver to the Escrow Agent
the certificates and such other instructions as may be
required hereunder in order to implement the provisions of
this Section 3.
5. Liquidation of the Escrow Fund. Whenever the Escrow Agent shall be
required to make payment from the Escrow Fund, the Escrow Agent shall
pay such amounts by liquidating the investments of the Escrow Fund, as
the case may be, to the extent necessary to pay such amounts in full
and in cash.
6. Maintenance of the Escrow Property: Termination of the Escrow Account.
(a) The Escrow Agent shall continue to maintain the Shares and
Warrants in the Escrow Account until the earlier of (i) the
time at which there shall be no funds in such Escrow Account;
and (ii) the termination of this Agreement.
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(b) Notwithstanding any other provision of this Agreement to the
contrary, at any time prior to the termination of the Escrow
Account, the Escrow Agent shall, if so instructed in a writing
signed by Xxxxxxx and the Investors, distribute the Escrow
Property and pay from the Escrow Fund, as instructed, to
Xxxxxxx and the Investors, as directed in such writing, the
amount of Shares, Warrants and cash so instructed (and if such
cash is not available, shall liquidate such investments of the
Escrow Fund as are necessary to make such payment).
7. Investment of Escrow Fund.
(a) The Escrow Agent shall invest and reinvest moneys on deposit
in the Escrow Fund, unless joint written notice to the
contrary is received from Xxxxxxx and the Investors, in any
combination of the following:
(i) readily marketable direct obligations of the
Government of the United States or any agency or
instrumentality thereof or readily marketable
obligations unconditionally guaranteed by the full
faith and credit of the Government of the United
States;
(ii) insured certificates of deposit of, or time deposits
with, any commercial bank that is a member of the
Federal Reserve System and which issues (or the
parent of which issues) commercial paper rated as
described in clause (c), is organized under the laws
of the United States or any State thereof and has
combined capital ad surplus of at least USD
1,000,000,000; or
(iii) commercial paper in an aggregate amount of no more
than USD 1,000,000 per issuer outstanding at any
time, issued by any corporation organized under the
laws of any State of the United States, rated at
least "Prime- I" (or the then equivalent grade) by
Xxxxx'x Investors Services, Inc. or "A-I" (or the
then equivalent grade) by Standard & Poors, Inc., or
(d) a mutual fund whose underlying investments are
represented by investments described in (i), (ii),
(iii) or a mutual fund rated "AAA."
(b) Initially the Escrow Agent shall invest and reinvest the
Escrow Fund in the FIDELITY PRIME NO. 76 MONEY MARKET FUND,
unless otherwise instructed in writing by Xxxxxxx and
Investors. Such written instructions, if any, referred to in
the foregoing sentence shall specify the type and identity of
the investments to be purchased and/or sold and shall also
include the name of the broker-dealer, if any, which Xxxxxxx
and the Investors direct the Escrow Agent to use in respect of
such investment, any particular settlement procedures
required, if any (which settlement procedures shall be
consistent with industry standards and practices), and such
other information as the Escrow Agent may require. The Escrow
Agent shall not be liable for failure to invest or reinvest
funds absent sufficient written direction. Unless the Escrow
Agent is otherwise directed in such written instructions, the
Escrow Agent may use a broker-dealer of its own selection,
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including a broker-dealer owned by or affiliated with the
Escrow Agent or any of its affiliates. The Escrow Agent or any
of its affiliates may receive compensation with respect to any
investment directed hereunder. It is expressly agreed and
understood by the parties hereto that the Escrow Agent shall
not in any way whatsoever be liable for losses on any
investments, including, but not limited to, losses from market
risks due to premature liquidation or resulting from other
actions taken pursuant to this Agreement.
(c) Receipt, investment and reinvestment of the Escrow Fund shall
be confirmed by the Escrow Agent as soon as practicable by an
account statement, and any discrepancies in any such account
statement shall be noted by Xxxxxxx and the Investors to the
Escrow Agent within 60 calendar days after receipt thereof.
Failure to inform the Escrow Agent in writing or any other
discrepancies in any such account statement within said 60-day
period shall conclusively be deemed confirmation of such
account statement in its entirety. For purposes of this
Section 7(c) each account statement shall be deemed to have
been received by the party to whom directed on the earlier to
occur of (i) actual receipt thereof and (ii) three business
days after the deposit thereof in the United States Mail,
postage prepaid.
8. Tax Matters. Xxxxxxx and the Investors shall provide the Escrow Agent
with their respective taxpayer identification numbers documented by a
Form W8 or Form W9 (or, in the case of Offshore such other form as may
be appropriate for a foreign company which is not a tax paying company
in the United States) upon execution of this Agreement. Failure to so
provide such forms may prevent or delay disbursements from the Escrow
Fund and may also result in the assessment of a penalty and the Escrow
Agent's being required to withhold tax on any interest or other income
earned on the Escrow Fund. Any payments of income shall be subject to
applicable withholding regulations then in force in the United States
or any other jurisdiction, as applicable.
9. Assignment of Rights to the Escrow Fund; Assignment of Obligations;
Successors. This Agreement may not be assigned by operation of law or
otherwise without the express written consent of the other parties
hereto (which consent, may be granted or withheld in the sole
discretion of such other parties). This Agreement shall be binding upon
and inure solely to the benefit of the parties hereto and their
permitted assigns.
10. Escrow Agent.
(a) Except as expressly contemplated by this Agreement or by joint
written instructions from Xxxxxxx and the Investors, the
Escrow Agent shall not sell, transfer or otherwise dispose of
in any manner any portion of the Escrow Fund, except pursuant
to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be
determined solely by this Agreement, and the Escrow Agent
shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Agreement.
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(c) In the performance of its duties hereunder, the Escrow Agent
shall be entitled to rely upon any document, instrument or
signature believed by it in good faith to be genuine and
signed by any party hereto or an authorized officer or agent
thereof, and shall not be required to investigate the truth or
accuracy of any statement contained in any such document or
instrument. The Escrow Agent may assume that any person
purporting to give any notice in accordance with the
provisions of this Agreement has been duly authorized to do
so.
(d) The Escrow Agent shall not be liable for any error of
judgment, or any action taken, suffered or omitted to be
taken, hereunder except in the case of its gross negligence,
bad faith or willful misconduct. The Escrow Agent may consult
with counsel of its own choice and shall have full and
complete authorization and protection for any action taken or
suffered by it hereunder in good faith and in accordance with
the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection or
protection of the Escrow Fund or income thereon, nor as to the
preservation of any rights pertaining thereto, beyond the safe
custody of any such funds actually in its possession.
(f) As compensation for its services to be rendered under this
Agreement, the parties hereby agrees to pay Escrow Agent for
its services hereunder in accordance with Escrow Agent's fee
schedule as set forth in Exhibit A, as in effect from time to
time and to pay all expenses incurred by Escrow Agent in
connection with the performance of its duties and enforcement
of its rights hereunder and otherwise in connection with the
preparation, operation, administration and enforcement of this
Escrow Agreement, including, without limitation, attorneys'
fees, brokerage costs and related expenses incurred by Escrow
Agent. In addition the Escrow Agent shall be reimbursed upon
request for all expenses, disbursements and advances,
including reasonable fees of outside counsel, if any, incurred
or made by it in connection with the preparation of this
Agreement and the carrying out of its duties under this
Agreement. All such fees and expenses shall be charged to the
Escrow Account.
(g) Xxxxxxx and the Investors hereby jointly and severally
indemnify the Escrow Agent, its officers, directors, partners,
employees and agents (each herein called an "Indemnified
Party") against, and holds each Indemnified Party harmless
from, any and all expenses, including, without limitation,
attorneys' fees and court costs, losses, costs, damages and
claims, including, but not limited to, costs of investigation,
litigation and arbitration, tax liability and loss on
investments suffered or incurred by any Indemnified Party in
connection with or arising from or out of this Agreement,
except such acts or omissions as may result from the willful
misconduct or negligence of such Indemnified Party.
(h) The Escrow Agent may at any time resign by giving twenty
business days' prior written notice of resignation to Xxxxxxx
and the Investors. Xxxxxxx and the
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Investors may at any time jointly remove the Escrow Agent by
giving ten (10) business days' written notice signed by each
of them to the Escrow Agent. If the Escrow Agent shall resign
or be removed, a successor Escrow Agent, which shall be a bank
or trust company having its principal executive offices in
Houston, Texas, and which shall be appointed by Xxxxxxx and
the Investors by written instrument executed by Xxxxxxx and
the Investors and delivered to the Escrow Agent and to such
successor Escrow Agent and, thereupon, the resignation or
removal of the predecessor Escrow Agent shall become effective
and such successor Escrow Agent, without any further act, deed
or conveyance, shall become vested with all right, title and
interest to all cash and property held hereunder of such
predecessor Escrow Agent, and such predecessor Escrow Agent
shall, on the written request of Xxxxxxx, the Investors or the
successor Escrow Agent, execute and deliver to such successor
Escrow Agent all the right, title and interest hereunder in
and to the Escrow Fund of such predecessor Escrow Agent and
all other rights hereunder of such predecessor Escrow Agent.
If no successor Escrow Agent shall have been appointed within
twenty (20) Business Days of a notice of resignation by the
Escrow Agent, the Escrow Agent's sole responsibility shall
thereafter be to hold the Escrow Fund until the earlier of its
receipt of designation of a successor Escrow Agent, a joint
written instruction by Xxxxxxx and the Investors and
termination of this Agreement in accordance with its terms.
(i) Should any dispute arise involving the parties hereto or any
of them or any other person, firm or entity with respect to
this Escrow Agreement or the Escrow Fund, or should a
successor Escrow Agent fail to be designated as provided in
Section 10 hereof, or if Escrow Agent should be in reasonable
doubt as to what action to take, Escrow Agent shall have the
right, but not the obligation, either to (a) withhold delivery
of the Escrow Fund until the dispute is resolved, the
conflicting demands are withdrawn or its doubt is resolved or
(b) institute a petition for interpleader in any court of
competent jurisdiction to determine the rights of the parties
hereto. Should a petition for interpleader be instituted, or
should Escrow Agent be threatened with litigation or become
involved in litigation or binding arbitration in any manner
whatsoever in connection with this Agreement or the Escrow
Property, Xxxxxxx and the Investors hereby jointly and
severally agree to reimburse Escrow Agent for its attorneys'
fees and any and all other expenses, losses, costs and damages
incurred by Escrow Agent in connection with or resulting from
such threatened or actual litigation or arbitration prior to
any disbursement hereunder. In the event Escrow Agent is a
party to any dispute, Escrow Agent shall have the additional
right to refer such controversy to binding arbitration in
Houston, Xxxxxx County, Texas.
(j) In the event funds transfer instructions are given (other than
in writing at the time of execution of the Agreement), whether
in writing, by telefax, or otherwise, the Escrow Agent is
authorized to seek confirmation of such instructions by
telephone call-back to the person or persons designated on
Schedule A hereto, and the Escrow Agent may rely upon the
confirmations of anyone purporting to be the person or persons
so designated. The persons and telephone numbers for
call-
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backs may be changed only in writing actually received and
acknowledged by the Escrow Agent. The parties to this
Agreement acknowledge that such security procedure is
commercially reasonable. It is understood that the Escrow
Agent and the beneficiary's bank in any funds transfer may
rely solely upon any account numbers or similar identifying
number provided by either of the other parties hereto to
identify (i) the beneficiary, (ii) the beneficiary's bank, or
(iii) an intermediary bank. The Escrow Agent may apply any of
the escrowed funds for any payment order it executes using any
such identifying number, even where its use may result in a
person other than the beneficiary being paid, or the transfer
of funds to a bank other than the beneficiary's bank or an
intermediary bank, designated.
11. Termination. This Escrow Agreement shall terminate on the earlier of:
(a) the time on which there are no funds remaining in the Escrow
Account and (b) the date after the Expiration Date on which all claims
made in certificates described in Section 4 hereof delivered to the
Escrow Agent pursuant prior to the Expiration Date shall have been
resolved. The provisions in Sections 10(f) and 10(g) will survive
termination hereof.
12. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by
telegram, by telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 12):
(a) if to Xxxxxxx:
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Financial Officer
(b) Xxxxxxxx & Xxxxxx
0000 Xxxxxxx Xxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxx
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(c) if to either Investor:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
(d) Gardere Xxxxx Xxxxxx LLP
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: X. X. Xxxxxxx III
(e) if to the Escrow Agent:
The Chase Manhattan Bank
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxx Xx
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas applicable to contracts
executed and to be performed entirely within that State.
14. Amendments. This Agreement may not be amended or modified except (a) by
an instrument in writing signed by, or on behalf of, Xxxxxxx, the
Investors and the Escrow Agent or (b) by a waiver in accordance with
Section 14 of this Agreement.
15. Waiver. Any party hereto may (i) extend the time for the performance of
any obligation or other act of any other party hereto or (ii) waive
compliance with any agreement or condition contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party or parties to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of
any subsequent breach or a subsequent waiver of a same term or
condition, or a wavier of any other term or condition, of this
Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any of such rights.
16. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic and legal substance of the transactions contemplated by this
Agreement is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties
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hereto shall renegotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in
a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
17. Entire Agreement. This Agreement and the Securities Purchase Agreement
constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among Xxxxxxx, the Investors and
the Escrow Agent with respect to the subject matter hereof.
18. No Third Party Beneficiaries. This Agreement is for the sole benefit of
the parties hereto and their permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other
person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
19. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all
of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
hereunto duly authorized.
XXXXXXX EXPLORATION COMPANY
--------------------------------------
By:
-----------------------------------
Its:
----------------------------------
DLJ MERCHANT BANKING PARTNERS III, LP
By: DLJ MERCHANT BANKING III, INC.
Its: Managing General Partner
--------------------------------------
Name:
---------------------------------
Title:
-------------------------------
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DLJ OFFSHORE PARTNERS III, CV
By: DLJ MERCHANT BANKING III, INC.
Its: Managing General Partner
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Name:
---------------------------------
Title:
-------------------------------
DLJMB FUNDING III, INC.
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By:
-----------------------------------
Its:
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DLJ ESC II LP
By: DLJ LBO PLANS MANAGEMENT
CORPORATION
Its: General Partner
--------------------------------------
Name:
---------------------------------
Title:
-------------------------------
THE CHASE MANHATTAN BANK
--------------------------------------
By:
-----------------------------------
Its:
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SCHEDULE "A"
Telephone Number(s) for Call-backs and Person(s)
Designated to Confirm Funds Transfer Instructions
IF TO INVESTORS:
NAME TELEPHONE NUMBER
---- ----------------
Xxxxxx X. Xxxxxxx (000) 000-0000
IF TO XXXXXXX:
NAME TELEPHONE NUMBER
---- ----------------
Xxxxxx Xxxxxxx (000) 000-0000
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